Lance Baker Crim. Pro. 2012 CRIM PRO OUTLINE SPRING 2011 PROF. LAWTON I.

. 4th Amendment The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issues, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized. A. Basics: guarantees the right to free from unreasonable searches and seizures 1. Two Important Parts: a. The Reasonableness Clause protects against unreasonable search & seizure i. Depends on 1) The scope of the seizure (e.g. arrest v. investigatory stop) 2) The strength of the seizure (e.g. an arrest requires PC, whereas an investigatory stop requires only reasonable suspicison) b. The Warrant Clause issued upon probable cause i. Judicial officer determines if there is PC for warrant ii. Information for PC must be reliable supported by oath or affirmation iii. Particularity Clause warrant must state clearly exactly what is to be searched, and what they are looking for (i.e. what can be seized if they find it) 1) Founders wanted to do away with general warrants c. Searches and seizures are presumed to be unreasonable UNLESS carried out pursuant to a warrant 2. The 4th A guarantees security in 4 areas: a. Persons i. Ds body as a whole (arrest) ii. Exterior of Ds body, including clothing (padded down for weapons or officer puts hand in clothing to pull out wallet) iii. Interior of Ds body (blood taken to test for blood or alcohol) iv. Ds oral communications (when conversations are subject to electronic surveillance) b. Houses Broadly construed to include i. Structures commonly used as a residence, even on a temporary basis (i.e. hotel room); ii. Buildings attached to the residence, such as a garage; iii. Buildings not physically attached to a residence that nevertheless are used for intimate activities of the home (i.e. a shed) iv. The curtilage of a home = the land immediately surrounding and associated with the home, such as a backyard areas where the intimate activities associated with the sanctity of a persons home and the privacies of life occur 1) Does NOT include open fields areas that include unoccupied and undeveloped real property. 2) Factors relevant to determining whether land = curtilage (US v. Dunn): a) the proximity of the land to the home; b) whether the area is included w/in enclosures surrounding the house; c) the nature of the use to which the are is put; d) the steps taken by the resident to protect the land from observation iii. Offices and other commercial buildings receive limited 4th A protection c. Papers i. Personal items diaries and letters 1

Lance Baker Crim. Pro. 2012 ii. Impersonal items business records d. Effects real property i. Automobiles ii. Luggage iii. Clothing iv. Weapons used in the crime v. Fruits of the crime 3. The People Who does the 4th A protect? a. The people refers to a class of persons part of the national community, or who have otherwise sufficient connection with this country so as to be part of the community b. NO protection for non-citizens in foreign country (US v. Verdugo-Urquidez) c. Aliens, legal or illegal, are probably protected 4. The 4th A is limited to government action a. Searches by private individuals, not acting as agents of the government, that turn up contraband are valid, regardless as to egregiousness, under the 4th A b. Government agents = publicly paid police, private persons acting at police discretion, privately paid police (i.e. security guards) who are deputized members of the public police force, and public school officials 5. Standing - the Court limits the scope of 4th A protection by requiring standing a. Only a person with an expectation of privacy in the place searched or the item seized may challenge the search i. Thus, E seized in violation of one Ds 4th A rights may be admissible against a co-D unless the co-D has independent grounds to assert such claim b. Whether a person has standing is determined on a case-by-case basis assessing the claimants legitimate expectation of privacy in the invaded place under TOC i. Nevertheless, the Supreme Court has held that a person has standing to raise a 4th A claim anytime: 1) The person owned or had a right to possession of the place searched; 2) The place searched was in fact the persons home whether or not the person owned or had a right to possession of it (e.g., a grandson living in the house owned by his grandmother); or 3) The person was an overnight guest of the owner of the place searched a) Minnesota v. Olson D, an overnight guest in his girl friends home, could challenge the police entry of the premises, notwithstanding the fact that defendant was never alone in the home, did not have a key, and lacked dominion and control over the premises ii. Legitimately on premises alone = insufficient not enough for standing merely that a person was harmed by intro of E obtained from an allegedly unconstitutional search of a third persons property 1) Residences one who is merely present, w/o further indicia of a reasonable expectation of privacy, may NOT claim 4th A protection a) Minnesota v. Carter out-of-town Ds came to anothers apartment for the sole purpose of packaging cocaine, had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. The Court focused on three factors in finding that the defendants had no reasonable expectation of privacy in the apartment searched: i) the purely commercial nature of the transaction engaged in there; 2

Lance Baker Crim. Pro. 2012 ii) the relatively short period of time in the apt; and iii) the lack of any previous connections b/w the Ds and the occupant of the apartment 2) Automobiles anyone who is in a car that is stopped unconstitutionally may challenge the stop. However, if car is constitutionally stopped, a passenger cannot challenge a search of the car merely b/c the passenger was legitimately w/in the car a) Rakas v. Ill a passenger in a car failed to prove that he had any legitimate expectation of privacy in the areas searched, namely, in the locked glove compartment and the area under the front passenger seat, and therefore, could not successfully claim the protections of the 4th A iii. Mere ownership of property seized insufficient not dispositive of a citizens reasonable expectation of privacy, but is only one factor iv. Conspirator no automatic standing 1) A conspirator must show that his own expectation of privacy was violated; not enough that he may be aggrieved by the intro of damaging E seized from a coconspirator 6. Exclusionary Rule: remedy for violation of 4the A right a. If the police obtain E in violation of the 4th A, than that E is NOT admissible in a criminal trial against the D; suppressed i. Fruit of the Poisonous Tree Doctrine Not only is illegally obtained E excluded, but also all E obtained or derived from exploitation of the original E (generally) b. First, ask whether the A prohibits the kind of police conduct described in case c. Then, ask whether the E gained in violation of the A should be available as proof in criminal trial and other proceedings (exceptions) d. D files Motion to Suppress certain E before trial MUST claim Ds personal right were violated by government action i. Types of Motions: 1) Suppress Evidence 4th Amendments 2) Suppress Statements 4th / 5th / 6th Amendments 3) Suppress Identifications 7. Retroactivity: a. General Rule: Supreme Court rulings are NOT retroactive for habeas cases b. EXCEPTION: Watershed rule of procedure (Whorton v. Bockting) i. Procedures implicating fundamental fairness B. Application of 4th A: Search and Seizure 1. Was there government conduct? 4th A does NOT apply to private conduct 2. Did D have a reasonable expectation of privacy? a. Courts consider the totality of the circumstances in determining whether privacy interests exist b. Watch for cases where D may have voluntarily given up privacy interests, such as by leaving items in plain view, abandoning them, etc. c. Ds merely being on the scene when a search occurs does NOT establish a privacy interest Q = whether Ds personal privacy interest was invaded by government conduct 3. Was there a warrant? Consider whether search was conducted pursuant to a warrant a. If so, was the warrant valid? i. To establish the validity of the warrant: 1) There must be a valid affidavit establishing probable cause, considering TOC; 3

Lance Baker Crim. Pro. 2012 2) The warrant must be issued by a neutral magistrate; AND 3) It must describe with reasonable detail the place to be searched and the items to be seized ii. Did the police act within the confines of the warrant? b. If the warrant was NOT valid? i. Consider the good faith exception E will NOT be excluded if the police officers reasonably and in good faith relied on the warrant 4. Did an exception to the warrant requirement apply? a. No warrant is needed for searches incident to a constitutionally valid arrest, carried out at the time and place of the arrest b. Automobile searches typically do not require warrants due to the mobility of the vehivle and the lesser expectation of privacy persons are thought to have while in their cars. i. BUT, police must still have probable cause to conduct the search c. Items in plain view are normally not subject to the warrant requirement b/c an owner has no expectation of privacy in items in plain view d. Police may conduct a limited stop of a suspect for investigatory purposes without probable cause or a warrant. i. All they need is an articulable, reasonable suspicion that the person may be involved in a crime ii. If the police think the suspect might be armed, they may also frisk the suspect for weapons and seize anything, which is in plain feel, they can establish is a weapon or have probable cause to believe is contraband iii. The Supreme Court has created a further exception for searches of public school children by school officials NO warrant and NO PC determination is required only reasonable suspicion e. All suspects may consent to a search or seizure, eliminating the need for a warrant, as long as consent is voluntarily given f. Polce officers benefit from a limited emergency exception C. Reasonableness Clause - Search & Seizure - The 4th A prohibits the government from conducting unreasonable searches or seizures 1. Search = any governmental intrusion upon a persons reasonable and justifiable expectation of privacy a. Katz v. US (1967) Believing that Katz was involved in gambling, police attached a recording device to the outside of a public telephone booth w/o a warrant. Katz was arrested and indicted for transmitting wagering information by telephone in violation of a federal statute, based on the E from the recordings. HELD: Illegal search under 4th A. The 4th A protects a person from search and seizure if, under the circumstances, he has a justifiable expectation of privacy, regardless of whether an actual physical trespass occurred - the 4th A protects people not places. One who occupies a telephone booth, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. The governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the fourth amendment. 4

Lance Baker Crim. Pro. 2012 Katz had a reasonable expectation of privacy to what he was saying in the phone booth, and thus the 4th A was implicated - Police were required to get a search warrant before installing recorder b. TEST = Reasonable Expectation of Privacy: a search falls w/in the protection of the 4th A when government action intrudes into an area where a person has a reasonable and justifiable expectation of privacy i. Subjective Prong: Whether the individual by his conduct has exhibited an actual expectation of privacy a) Considerations: 1) Did they take affirmative steps to keep business out of plain view and from the general public? i) Whatever a person knowingly exposes to the public, even in own home, is NOT protected ii) BUT, what a person keeps private, even in a public place, may be protected 2) Did they abandon E for others to find? i) Garbage left on the street is fair game ii. Objective Prong: Whether the expectation is one that society recognizes as reasonable a) CANNOT be undercut by a general announcement that government will search all houses in the neighborhood (exception for things such as road blocks) iii. Interests Protected by 4th A after Katz a) 3 Legitimate Interests: 1) Interest in being free from physical disruption and inconvenience 2) Interest in keeping private/personal/embarrassing info private 3) Interest in control over and use of private property b) Seizure threatens the interest in retaining possession of property c) Search threatens the interest in maintaining personal privacy d) NO reasonable expectation of privacy in info exposed to public e) NO legitimate privacy interest in illegal activity (US v. Place) c. Open Fields Doctrine: Area outside the curtilage (i.e., dwelling house and nearby outbuildings) are held out to the public and are subject to police search w/o violating the 4th A, even if it might constitute a common law trespass i. Permits police officers to enter and search plants growing in an open field w/o a warrant even if the field is highly secluded, not accessible from any public point, and posted with no-trespassing signs (Oliver v. US) ii. NO legitimate expectation of privacy NO societal interest in protecting the privacy of activities that occur in open fields (such as the cultivation of crops) iii. Curtilage = protected by 4th A a) Factors to determine curtilage case-by-case determination (US v. Dunn) 1) Proximity of area to home 2) Whether the area is w/in an enclosure surrounding the home 3) The nature and uses of the area 4) Steps taken by resident to protect the area from observation b) Even if property searched is part of curtilage, it a search if surveillance occurs from outside the curtilage (i.e. from open field or public navigable airspace) AND it is conducted in a physically non-intrusive manner c) The ultimate Q is whether the outbuilding in question is so intimately tied to the home that it should warrant 4th A protection 5

Lance Baker Crim. Pro. 2012 d) Example: (US v. Dunn) A barn was held NOT to be w/in the curtilage of the home b/c it was 60 yards from the home and 50 yards outside the fence surrounding the home, it was used to manufacture drugs rather than to carry on intimate activities of the home, and it was protected only by low fences designed to corral livestock rather than prevent viewing v. NOTE: If exam Q on open field doctrine a) First, examine whether the area is w/in the curtilage b) If NOT w/in curtilage NO expectation of privacy c) If w/in curtilage expectation of privacy, so must determine if the search was reasonable d. Aerial Searches: Supreme Court has found that an aerial search is NOT a search under the 4th A and thus do NOT require a warrant i. Aerial surveillance by the government of activities occurring within the curtilage of a house does NOT constitute a search if the surveillance: a) occurs from public navigable airspace; b) is conducted in a physically non-intrusive manner; and c) does NOT reveal intimate activities traditionally connected with the use of a home or curtilage ii. A warrantless naked-eye aerial observation of a fenced-in backyard from 1000 feet does NOT violate the 4th A (CA v. Ciraolo) a) Based on a tip that D was growing marijuana in his backyard, police rented a plane and flew over Ds house (w/in navigable airspace). They observed and photographed the marijuana, and the search was upheld despite the fact that D tried to protect his yard from view by erecting a 10-ft fence around it b) Today when flights are so common, it is unreasonable for D to expect privacy ii. Surveillance of the interior of a partially covered greenhouse in a residential backyard from a helicopter at 400 feet does NOT constitute a search for which a warrant is required helicopter was in legitimate airspace (FL v. Riley) a) Helicopter did not come so low as to create a physical intrusion upon Ds property (i.e. didnt cause extreme noise or blow dust, etc.) iii. Construction of a fence which blocks observations from ground-level and demonstrates the Ds desire to maintain privacy does NOT necessarily equate to a reasonable expectation of privacy if there any modes of surveillance possible under the circumstances, e.g., airplanes and helicopters flying above, observations from taller adjacent buildings, a utility repair person on a pole overlooking the yard. iv. Aerial searches fail the expectation of privacy test b/c activities are exposed to the public if public can see activities, than police are NOT required to shield their eyes or to turn away e. Thermal Imaging of Homes: The Supreme Court has held that b/c of the strong expectation of privacy w/in ones home, obtaining by sense enhancing technology any info regarding the interior of a home that could not otherwise have been obtained w/o physical intrusion constitutes a search, at least where the technology in question is not in general public use, and is presumptively unreasonable w/o a warrant i. Kyllo v. US the police, while parked on public land, used a thermal imaging device to measure heat coming from a home to determine that the suspect was using high intensity lights inside the house to grow marijuana. The officer used this information to obtain a warrant RULE: Where the police use a device, not yet in general public use, to explore details 6

Lance Baker Crim. Pro. 2012 of the home, that would be previously unknowable w/o physical intrusion, the surveillance IS a search. Therefore, the use of thermal imager on Ds home constitutes a search. D didnt knowingly expose anything to outsiders D had a reasonable expectation of privacy in his activities w/in the home f. Searches of Trash NO reasonable expectation of privacy in what a person chooses to discard i. CA v. Green garbage left in a public space for collection may be searched w/o a warrant. Police are not expected to be less inquisitive than the most inquisitive members of the general public; although most do not go through others trash, some do ii. Trash is conveyed to a third party (trash collectors) and is readily accessible to whomever and whatever (animals, etc.) g. Manipulation of Luggage i. Physical manipulation of an individuals luggage = illegal search 1) A person has a reasonable expectation of privacy by placing something in an opaque bag 2) Society would find that the expectation of privacy in your luggage is reasonable h. Observation and Monitoring of Public Behavior i. Beepers (tracking device): surveillance of activities occurring in public search 1) US v. Knotts D was suspected of buying chemicals to manufacture illegal drugs. Police placed a tracking device in a vat of chemicals and monitored its movements. The device led police to a cabin owned by D; they observed the cabin for 3 days from the air, and then obtained a search warrant where police discovered a fully operable meth lab RULE: Police use of an electronic tracking device to monitor areas where there is no legitimate expectation of privacy does NOT violate the 4th A. The use of an electronic tracking device attached to a suspects vehicle or object carried by the suspect a search to the extent that it provides police with information that could have otherwise been secured by visual surveillance from public places. o D had a reasonable expectation of privacy for the cabin, BUT that did not extend to police observation of arriving vehicles, nor to movements of objects (such as the drum of chloroform), outside the cabin in the open fields. There is no expectation of privacy when traveling in a car on public roads b/c voluntarily conveying information of movements The fact that the police relied not only on visual surveillance, but also on the beeper to signal the presence of Petshens car, does not alter the situation o Police can enhance their sensory facilities (w/in limits) w/o violating the 4th A beeper enhance what they could already do 2) US v. Karo - DEA agents arranged to have a beeper placed by informant/supplier in cans of ether that were allegedly to be used to extract cocaine from clothing RULE: The delivery of an electronic tracking device in a container of chemicals to a buyer without knowledge of the device does NOT violate the 7

Lance Baker Crim. Pro. 2012 4th A, BUT when the beeper allows the police to monitor activity w/in a private place, such as the home = search in violation of the 4th A Although the monitoring of the device may have constituted a search, the mere transfer of the can to D did not Likewise, Ds possessory interests were not meaningfully interfered with by the transfer, so no seizure occurred With regards to actual monitoring of the beeper, the Court held that the use of the beeper to track D in his private residence, an area not open to visual surveillance in which he had a legitimate expectation of privacy, violated his 4th Am rights 3) SUMMARY: Electronic monitoring using tracking devices, such as beepers, does not violate a defendants 4th Amendment right if the search could have been visually verified. In Knotts, the search was visually verified b/c the police could see where the defendant was driving. In Karo, the search was unreasonable b/c the police could not visually verify that the beeper was inside the house. ii. Pen Registers records outgoing phone numbers 1) Installation and use of a pen register by the telephone company, at the behest of the government, to record the telephone #s dialed from a private residence a search under the 4th A 2) Smith v. MD D robbed and made harassing calls to victim. Cops, w/o a warrant, had the phone company install a pen register to record the #s dialed from Ds home phone. It revealed that D had been calling the victim and the police used this to get a warrant RULE: The installation and use of a pen register does NOT constitute a search under the 4th A. The court applied the Katz test: NO subjective expectation of privacy b/c by placing call youre voluntarily giving the phone numbers to a third party (the phone company) NO legitimate expectation of privacy when you voluntarily turn over info to 3rd parties Note: Congress passed a statute in 1986 that prohibits the installation or use of pen registers w/o a court order. A federal court can issue an order for a 60-day period upon application of a US Attorney IF, 1) US Attorney has certified to the court that the relevant info is likely to be obtained by such installation; and, 2) its use is relevant to an ongoing criminal investigation (lower standard than PC). The statute also provides that a pen register may be installed w/o a court order for a period of 48 hrs if there is an emergency involving immediate death or serious bodily injury iii. False Friends government agent, doesnt matter if wired 1) The 4th A protects private conversations where NO party consents to the surveillance and/or recording, BUT does NOT protect conversations where one part consents to such activity a) Thus, no search occurs if a police informant or undercover agent pretending to be Ds friend, business associate, or colleague in crime, 8

Lance Baker Crim. Pro. 2012 reports to the gov the Ds statements made in the informants or agents presence (US v. White) b) Also applies where the false friend wears a wire to record the convos 2) A person has no reasonable expectation of privacy in the ideas and words that are being voluntarily conveyed to another (conversations) a) When you talk to someone, you are knowingly exposing your words to the public, or at least to that other person iv. Bank Records 1) CA Bankers Assn. v. Schultz inspection of bank records by law enforcement a search. Voluntarily provide information to bank by writing a check, charging card, etc, therefore NO REP v. Routine Traffic Stop search i. Drug Sniffing Dogs i. A person does NOT have a legitimate expectation of privacy in contraband, therefore the Court has held that the use of dogs is NOT a search in some circumstances: 1) closed luggage, and 2) traffic stop ii. Luggage US v. Place 1) Submitting luggage, located in a public place, to a sniff test does NOT constitute a search b/c unlike a typical search, general contents of the container are not disclosed to police; 2) HOWEVER warrantless detention of luggage for an unreasonable time (90 minutes) before being submitted to the sniff test rendered seizure invalid iii. Traffic Stops As long as the police have constitutionally stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incidental to such a stop, a dog sniff of the car does NOT implicate the 4th A 1) Ill v. Caballes 4th A was NOT violated when, during a routine traffic stop, a police officer walked a narcotics detention dog around Ds car and the dog alerted to the presence of drugs, even though before the dog altered, the officer did not have a reasonable and articulable suspicion that would justify a search 2) BUT, cannot extend the stop beyond the time reasonably required to complete the purpose of the stop 3) The majority distinguished the use of a drug-sniffing dog from a thermalimaging device on the basis that such a device is capable of detecting lawful activity, including very intimate lawful activity j. Factors for determining a search in boderline police activity: i. The nature of the place observed home is most protected ii. Steps taken by D to enhance privacy iii. How intrusive was the police activity? 1) A pen register is not very intrusive provides relatively little information to the government only #s, not what was said iv. The degree to which the surveillance requires physical intrusion onto private property where was the observer? v. The nature of the activity thats being observed? Intimate activity vs. less personal 2. Seizure = the exercise of control by the government over a person or a thing a. Seizures of Property i. A seizure of tangible property occurs when there has been a meaningful interference with an individuals possessory interest in that property (US v. Jacobson) 1) Meaningful Interference = Police exercises control over ones property by 9

Lance Baker Crim. Pro. 2012 destroying it or removing it from Ds possession (i.e. taking ones wallet to police station; towing ones car to impound) a) BUT if police picks up wallet and puts it back down, then seizure ii. Scope of seizure 4 categories of seizable E - the police have a constitutional right ONLY to seize (Warden v. Hayden): 1) Contraband (i.e. property that the person has no legal right to possess in the first place, like illegal drugs) 2) The instrumentalities of crime (i.e. anything that was used in the crime; burglars tools) 3) The fruits of crime (i.e. stolen goods) 4) The mere E of crime, as long as PC exists to believe that the item is connected to criminal activity (i.e. suspects blood-stained clothing; anything that can be used to prove the crime) b. Seizures of Persons includes both a Terry stop and an arrest i. A seizure of a person occurs when 1) A police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen (Terry v. Ohio), or a) 4th A safeguards are invoked only if a person is seized 2) in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall) a) Mendenhall Factors: i) threatening presence of several officers ii) display of weapons (show of force) iii) physical touching iv) language/tone of voice indicating that compliance might be compelled ii. Examples of activities that constitute a seizure of persons: 1) Arrests for there to be an arrest, the police must take a person into custody against her will for purposes of criminal prosecution or interrogation. This requires: a) A physical application of force by a police officer; OR b) A submission to an officers show of force c) A consensual encounter can transform into a Terry stop or an arrest if a reasonable person would have felt she was not free to leave 2) Physically restraining or ordering a person to stop in order to frisk or question him on the street a) CA v. Hodari D. a person is NOT seized until and unless he submits to officers show of authority OR officer uses physical force to control persons movement i) Fleeing teen was not seized until he was tacked by officer, therefore, was not seized when he tossed the drugs 3) Taking the person into custody and bringing him to a police station for questioning or fingerprinting 4) Ordering a person to pull his automobile off the highway for questioning or to receive a traffic citation a) When police stop a car, driver and any passengers in the car are seized (Brendlin v. CA) 10

Lance Baker Crim. Pro. 2012 5) Stopping a car by means of a roadblock 6) Self-Restrained: a person on a bus/train is self-restrained a) If police enter and ask to search a persons bags, the Q is whether a reasonable innocent person would feel free to decline the officers request or otherwise terminate the encounter (Bostick, Drayton) iii. However, brief questioning by itself is unlikely to amount to a seizure iv. Bottom Line Q = was the person free to leave or terminate encounter? D. The Requirement of Probable Cause: 1. Generally a. PC exists when the facts and circumstances known personally to a police officer and/or in which the officer has reasonably trustworthy second hand information, are sufficient to warrant a person of reasonable caution to believe that: i. For Arrests: a crime has occurred and that D committed the crime ii. For Searches & Seizures: she will find criminal E where she is looking iii. Standard for PC = objective i. An officers subjective does not in itself constitute probable cause. ii. However, in determining what a person of reasonable caution would believe, a court will take into account the specific experiences and expertise of the officer whose actions are under scrutiny b. Scope PC is required as a basis for: i. ALL arrest and search warrants; ii. ALL arrests, even w/o a warrant; iii. MOST searches or seizures of property, even w/o a warrant 1) A lesser standard reasonable suspicion may apply where the intrusion is minor, such as a pat-down for weapons. 2) Also, where the intrusion on a persons privacy is especially slight and societys interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for border crossings and checkpoints and certain administrative searches. c. PC can be found on direct information (personal observation) or hearsay information i. No weight may be given to unsupported conclusory statements in PC determinations d. Exceptions: i. In schools, searches of students purses require only reasonable suspicion ii. Court approved random drug testing are allowed w/o any individualized suspicion e. The Q = whether the facts and circumstances before the officer are such to warrant a man of prudence and caution in believing that the offense had been committed 2. Info from Informants: Hearsay E a. Spinelli Aguilar Two-Prong Test: (but see Gates, which replaced it) A magistrate would consider hearsay information if both prongs were met i. Basis of Knowledge of the Informant: was it likely that he had knowledge? 1) Satisfied if informant personally observed the reported facts 2) If second-hand, the magistrate must ascertain the reliability of that source 3) In some circumstances, satisfied by self-verifying detail where the information provided was so rich in detail that it was reasonable to conclude that it was obtained 1st hand ii. Reliability or Veracity of Informant: Was the informant credible was it likely that he was telling the truth? 1) To satisfy, E must demonstrate either that the informant was a credible person 11

Lance Baker Crim. Pro. 2012 OR the his information in the specific case was reliable 2) Considerations: a) Has this informant been accurate in the past so as to render him reliable? b) Polices subsequent investigation can be used to corroborate truth of informants statements (Draper) c) Affidavit should have attached statement detailing how information was gathered and attempt to prove tip is not rumor or conclusory accusation based on reputation iii. If one of the prongs was not satisfied, the hearsay E, by itself, was deemed insufficiently trustworthy, but its trustworthiness could be resuscitated by at least partial corroboration b. Illinois v. Gates: Police received an anonymous letter stating that D and his wife were drug dealers and describing in detail a drug run they were to make to FL. The police corroborated some of the information in the letter and thereafter obtained warrant. Upon Ds return, the police searched his car and home, finding marijuana, weapons, and other contraband. E was suppressed b/c under Spinelli-Anguilar test, there was no PC for warrant. HELD: S-A test is too rigid veracity and basis of knowledge factors are highly relevant but are not separate and necessary elements of PC. Based on the totality of the circumstances, this information from the informant was sufficiently reliable to be considered - seemed to suggest the informant had first hand knowledge b/c of the amount of detail c. Totality of the Circumstances Test i. Judges can make common sense determinations of whether a tip provides reliably trustworthy information by looking to all of the circumstances, including the informants basis of knowledge, the informants veracity/reliability, and anything else that is relevant (amount of detail, corroboration by police or others, officers opinions) 1) All of the allegations in the affidavit, taken together, must permit the magistrate to determine there is a fair probability that contraband or E of a crime will be found in a particular place 2) Requires magistrate to balance the relative weights of all the various indicia of reliability (and unreliability) attending an informants tip. ii. It serves the public by allowing police to rely on anonymous tips, which frequently lead to the solution of otherwise unsolvable crimes, while at the same time still requiring an affidavit to contain more than merely conclusory statements as to the basis for finding probable cause iii. Standard of Proof Required 1) Enough particularized facts to lead a common sense person of reasonable caution to believe that there is a fair probability of criminal activity 2) MD v. Pringle there must be a reasonable ground for belief of guilt AND the belief of guilt must be particularized with respect to the person to be searched or thing to be seized iv. Objective Standard - Determined from the viewpoint of a reasonable officer and what he knows at the time he acted 1) Search or seizure CANNOT be legitimized by what happened after the fact 2) Issue is NOT whether the particular officer in question subjectively believed she had PC 3) IF there is objective PC, does NOT matter if officer was acting on bad motives 4) Whren v. US Plainclothes policemen patrolling a high drug area observed a 12

Lance Baker Crim. Pro. 2012 suspicious SUV with youthful black passengers. The car waited unusually long at stop sign, then made a sudden right w/o signaling, and sped off at an unreasonable speed. The officers stopped the car for the traffic violations, however, upon approaching the vehicle, they saw two plastic bags of crack cocaine. At trial, D moved to suppress the E, arguing that the stop was not justified by either reasonable suspicion or PC to believe that they were engaged in illegal drug activity, and the grounds for the approaching was pretextual. HELD: The temporary detention of a motorist upon PC to believe that the has violated the traffic laws does NOT violate the 4th As prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective If a reasonable officer would have found PC to believe a traffic violation had been committed, then stop is valid The subjective motivations of the officer is irrelevant E. The Warrant Requirement: no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized 1. Generally: generally, a warrant is required before a search or seizure may be conducted a. Entry into a home w/o a warrant is presumed unreasonable i. To enter a home lawfully w/o a warrant, police must have: 1) Consent, OR 2) PC for search/seizure + exigent circumstances b, If and when a warrant is issued, it must: i. Be based on probable cause ii. Be supported by oath or affirmation iii. Particularly describe what is to be searched and seized; and iv. Be issued by a neutral magistrate, who makes an independent evaluation of whether PC is present acts as a check on the police c. Oath or Affirmation i. An affidavit supporting a search warrant is presumed valid ii. In limited circumstances, a D may challenge a facially valid warrant, after the search is conducted, on the grounds that it would NOT have been issued but for the falsity in the affidacit 1) D must make a substantial preliminary showing that: a) a false statement was included in the affidavit; b) the affiant made the false statement knowingly and intentionally or with reckless disregard for the truth; and c) the false statement was essential to the magistrates finding of probable cause. 2) If the allegations are proved at a hearing by a preponderance of the evidence, the warrant is void, and the fruits of the search must be excluded from the criminal trial d. Burden of Proof i. If warrantless search is presumptively reasonable (i.e. falls w/in an exception) = D has burden of challenging the legality of the search ii. If warrantless search is presumptively unreasonable = Government has burden of proving legality e. Timing of Execution i. Must be executed w/in a specified time NOT longer than 10 days (FRCP 41) 13

Lance Baker Crim. Pro. 2012 1) Staleness issue over time, the location of what you are looking for may move 2) Warrant for a tracking device must specify a reasonable length of time that the device may be used, not longer than 45 days from the date the warrant was issued ii. Must be executed during daytime: 6am 10pm 2. Search Warrants: searches w/o warrant are per se unreasonable under the 4th A subject only to specific exceptions a. Purpose of Warrant why do we make cops get warrants? i. We as a society want the critical decision of PC (whether there are sufficient grounds to intrude on a persons reasonable expectation of privacy) to be decided by a neutral and detached magistrate, rather than by a police officer who is involved in the case and may not be able to look at facts objectively, before the invasion has occurred ii. Safeguards an individuals interest in the privacy of his home and possessions against unjustified police intusion b. Particularity Requirement warrant has to particularly describe the place to be searched and the person or things to be seized i. Can NOT authorize search for E of unspecified crimes (Andersen v. MD) ii. Place to be searched must be described in a warrant in a manner sufficiently precise that the officer executing the warrant can identify it with reasonable effort 1) A warrant to search an automobile is sufficient if it describes the vehicle in a manner that makes it easily identifiable, such as by providing the license or vehicle identification number, or by describing its location, if the location is a one-car garage, but not if it is a two-car garage or public parking lot. iii. Persons or things to be seized - the warrant has to be as specific in stating the things to be seized as it realistically can 1) Some ambiguity and discretion is allowable, depending on the circumstances: Factors: a) Relatively general description tolerated if item cannot be described more fully (fruits of bank robbery of cash) b) More generality allowed in cases of contraband rather than for papers and effects c) More specificity required when searching for something that will likely be surrounded by similar items at search site d) Must be extremely specific when search may encroach on 1st A concerns c. Executing a Warrant warrant must be executed in a reasonable manner i. Knock & Announce Rule: 1) Absent special circumstances, an officer may NOT forcibly enter a home to execute a warrant, UNLESS they first knock and announce their presence to the occupants, identify themselves as officers, state purpose for seeking entry, ask for permission to enter, and are denied entry. a) Recognized as a constitutional requirement embedded in the reasonableness clause by the Supreme Court in Wilson v. Arkansas 2) Justifications: a) Avoid unnecessary damage to the individuals property b) Avoid the risk that occupants use violence against the police b/c innocently believe they are unlawful intruders c) Reduces invasions of privacy allow occupants to put close on 14

Lance Baker Crim. Pro. 2012 3) Exceptions: Where it is reasonable for police to enter forcibly w/o warning a) Threat of violence to the police or others that would be aggravated by announcement b) There is reason to believe that there is criminal E inside that would be destroyed if they give notice (drug cases) c) Hot pursuit d) Richards v. Wisconsin police need only have reasonable suspicion to believe that one of the exceptions applies. Police have discretionary right at the scene to determine if announcement would be dangerous / inhibit investigation e) US v. Banks police did NOT violate the 4th A when they waited 15-20 seconds after K & A before forcing entry if they had reason to believe that waiting longer would allow the suspect to destroy contraband i) Court will perform a case-by-case analysis, based on what the police knew before entry: length of time police waited, type of exigency claimed, facts specific to case f) Hudson v. Michigan the exclusionary rule does NOT apply to E gained after police violate K & A requirement ii. Scope of Search 1) The police are authorized to search only for items specified in the warrant 2) They may open containers (e.g., drawers, closets, trunks) within the place specified in the warrant if the containers are large enough to contain the object of the search. E.g., the police may open dresser drawers in a search for narcotics but not for a stolen television 3) Nevertheless, the police are authorized to seize any item, whether or not it is described in the warrant, IF: a) they discover the item while searching a place that they have the authority to search; b) the item is located in such area; and c) they have PC to believe the item is subject to seizure (contraband, fruit of crime, etc) 4) Once the police find item described in the warrant, must stop searching iii. People on the Scene 1) When a warrant is executed in a public place, the police may not extend the search to persons not named in the warrant who happen to be present at the premises identified in the warrant, UNLESS they have reasonable suspicion that such other persons are armed and dangerous - does NOT give police implicit authority to search people found at scene unless there are separate grounds for a search (Ybarra v. IL) 2) BUT, search warrant does carry limited authority to detain occupants of premises while proper search is conducted (Michigan v. Summers) a) Protect the safety of the officers b) Prevent flight in the case of incriminating E c) Facilitates the orderly completion of the search 3) AND, this limited authority provides police the ability to use reasonable force to detain an occupant (Muehler v. Mena) case-by-case determination iv. Unforeseen Circumstances or Mistakes in Executing a Warrant 1) If a mistake is made in executing a warrant, the search is permissible so long as 15

Lance Baker Crim. Pro. 2012 the police action is reasonable 2) Once the mistake is realized, the police must stop searching 3) Info that becomes available either before or during the course of a search may require the police to cease or narrow the search, regardless of warrant (Garrison & Rettelle) v. Unusual Warrants: 1) Anticipatory Warrant a) Magistrate must determine that it is now probable that contraband (etc.) will be on the described premises when the warrant is executed 2) Conditioned Anticipatory warrant = warrant with a triggering condition a) Magistrate must determine that i) If the triggering condition occurs, there is a fair probability that contraband (etc.) will be found in a particular place AND ii) There is PC to believe the triggering condition will occur b) Cannot execute warrant until triggering condition occurs D. Exceptions to the Warrant Requirement: i. Exigent Circumstances 1) If there is not enough time to get a warrant or the circumstances make it unpractical to get a warrant, and their conduct is otherwise reasonable under the circumstances, then the police are not required to get a warrant must have PC a) Hot pursuit police in hot pursuit of a fleeing felon may make a warrantless search and seizure, and may also seize (w/o a warrant) E likely to disappear before a warrant can be obtained i) Warden v. Hayden Police had PC to believe that a man involved in an armed robbery had just fled into a particular home. A woman opened the door and permitted them to enter. The officers canvassed house looking for suspect, whom they eventually found pretending to be asleep in bed. While searching for the suspect, they found E connecting the suspect to the robbery in washing machine and flush tank of toilet were concerned about possible weapons HELD: NO violation of the 4th A they had a right to enter the house w/o a warrant in hot pursuit of the suspect AND had a right to search the whole house w/o a warrant to search for the suspect AND it was reasonable for them to search w/o the warrant any place where a weapon might be found and used against them b) Imminent Destruction of Evidence c) The need to prevent a felons escape; or d) Threat to public safety or officer 2) The exception does not generally apply to cases involving minor offenses a) Welsh v Wisconsin warrantless entry of the Ds home in order to arrest him for drunk driving was unconstitutional; the Court rejected the states argument that the entry was necessary in order to collect a blood sample for testing before evidence of alcohol consumption was destroyed ii. Search Incident to Lawful Arrest (SILA) 1) Incident to a lawful custodial arrest, the police may make a warrantless search of: 16

Lance Baker Crim. Pro. 2012 a) The arrestees person, AND i) The search of an arrestee may include pockets of his clothing, and any containers found therein, as well as containers immediately associated with him, such as a briefcase or shoulder bag, that are large enough to conceal a weapon or evidence of a crime b) The area w/in the arrestees immediate control (the grabbing area area from which might gain weapon or destroy E) (Chimel v. CA) i) Factors to consider in determining the arrestees grabbing area are: (1) whether he is hand-cuffed in front or behind his back (2) his size and dexterity (3) the size of the space he is in (4) whether containers within his reach are open or shut, and if shut, whether they are locked (5) the number of officers relative to suspects ii) If the arrest takes place w/in the home, the police may conduct a protective sweep of the premises and search closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched (Buie) (1) Search is to be limited to a cursory visual inspection of those places in which a person could be hiding, and may last only as long as necessary to dispel the reasonable suspicion of damage, or to complete the arrest and depart the premises iii) If the person arrested is an occupant (driver or passenger) of an automobile, the police may conduct a warrantless search the entire passenger compartment, including the glove compartment and any containers found therein (open or closed) but NOT the trunk (NY v. Belton) (1) Applies to recent occupants of a car if w/in close proximity of car at the time of the arrest (Thorton v. US) OR (2) When it is reasonable to believe that E relevant to the arrest might be found in the car (AZ v. Grant) 2) Probable Cause to Seize a) A police officer may seize without a warrant any article found during the search upon probable cause to believe that it is criminal evidence related to the immediate or another crime, even though probable cause is not necessary to conduct the search 3) Authority to conduct SILA is automatic if arrest is lawful (based on PC that crime has occurred) and custodial dont need PC for search a) Applies to arrest in which the officer takes the suspect into full custody, which includes transporting to the station for booking i) Does NOT apply when officer only temporarily detains a suspect (citation offense) (Knowles v. Iowa) b) Can search closed containers on person or w/in their immediate control (Robinson v. US) 17

Lance Baker Crim. Pro. 2012 i) BUT containers NOT immediately associated w/ an arrestee cannot normally be opened w/o a search warrant, UNLESS police have PC or exigent circumstances c) Can search wingspan gabbing area (Chimel) (check to see if there is a need for a protective sweep Buie) d) Can seize anything the officer has PC to believe is contraband, fruit of crime, etc. 4) Search MUST be contemporaneous in time and place with an arrest a) A search conducted at a different location and hours after the arrest generally cannot be justified by SILA b) EXCEPTION: Station House Inventory search when an arrestee is take to the police station, police may make a full inventory search of the arrestees person and all property in his possession (to protect the police and the property) IF it is done pursuant to established procedure 5) Rationale: a) Prevent destruction/concealment of E; and b) Protect officers and others on scene iii. Automobile Exception: applies to ANY motor vehicle 1) A police officer may conduct an immediate warrantless search of a motor vehicle that the officer has PC to believe that it contains seizable E IF: a) the officer stops the car traveling on a public road, or b) The officer discovers the car parked, but readily capable of operation, in a place NOT regularly used for residential purposes, such as a public paring lot or gas station (Carnie), or c) Back at station, as long as delay is not too long (Chambers) 3) Scope of Search the search may encompass a) The whole vehicle, and b) Containers in the vehicle where E or fruits may be found i) Containers, even one belonging to a passenger who is not suspected of criminal activity, may be searched without a warrant during an otherwise lawful automobile search provided the container is large enough to hold the criminal evidence for which the police are searching (1) Any container that constitutionally can be searched at the scene may also be seized and searched without a warrant shortly thereafter, at the police station. ii) IF officers have PC to search ONLY a container w/in a car, they may only search that container iii) US v. Chadwick Police had PC to believe that a locked locker that D was carrying on a train contained contraband, but did not get a warrant. They did not search him or the locker upon his arrival, but waited for D to put the locker in the trunk of the car, and then went and arrested Ds before they could drive away, seized the locker, and searched it, finding contaband HELD: unlike cars, there is full expectation of privacy in our closed containers and therefore 4th A protection. The officers validly seized the locker, but should have obtained a warrant to search it 18

Lance Baker Crim. Pro. 2012 iv) CA v. Acevedo (overrules Charwick) Cops saw D leaving a house with a brown paper bag and put it in the trunk. They had PC to believe the bag contained drugs. The officers stopped him on the highway, searched the trunk and the bag and found marijuana HELD: S.C. held that once a container is put into a car and the car is on the highway or otherwise meets the conditions of a genuine car search, than there is a reduced expectation of privacy in the container in the car. Therefore, officers MAY search closed containers w/in a car w/o a warrant, pursuant to a valid search of the vehicle Exam Point: IF cops had stopped Acevedo before he got into the car, than Chadwick would have applied (reasonable expectation of privacy in container) and the cops would have been able to seize the bag but would not be able to open it w/o a warrant Exam Point: IF cops had had PC to arrest Acevedo when he left the house, it would have been a valid arrest as they dont need a warrant to arrest in public. With that valid arrest, they could then have searched him incident to lawful arrest, seized the bag which would have been on his person, and open it w/o a warrant o BUT if they didnt arrest him, but only separated him from the bag, then need warrant to open (Chadwick) c) Mobile homes i) California v. Carney DEA agents had PC to believe that the occupant of a motor home parked in a public parking lot was trading drugs for sex. They conducted a warrantless search and found marijuana and related paraphernalia HELD: The automobile exception applies to motor homes, which are readily capable of use as a vehicle and found stationary in a place NOT regularly used for residential purposes. The motor home, while having homelike qualities, is also inherently mobile and subject to the same state licensing laws as regular vehicles. The Court left open the issue of what to do with a motor home that isnt being used for transportation purposes (i.e. on blocks, attached to utilities) they said in that case, MAYBE a warrant would be required d) Searches away from the scene i) A warrantless search of an automobile that would be valid if it were conducted at the scene, is also permissible if it takes place shortly thereafter away from the scene, such as if the police impound the vehicle and subsequently conduct the search. ii) The Supreme Court has authorized delays of a few days (US v. 19

Lance Baker Crim. Pro. 2012 Johns), but found a year long delay unreasonable (Coolidge v. NH) 4) Rationales: a) Mobility of car creates an emergency that justifies the immediate search b/c can be moved before a warrant is issued i) A functioning vehicle = inherently mobile therefore, the car is thought to maintain its mobility even at the police station b) Reduced expectation of privacy in car than in house or other belongings i) The subject to governmental regulations and the extent of police contact with cars is substantially greater ii) Primary purpose is transportation rarely serves as a residence or repository or personal effects less private object iii) Travels on public roads in plain view 5) Differences b/w SILA: a) SILA of a car occupant does NOT require PC to search the passenger compartment of the vehicle; BUT a search pursuant to the car search exception DOES require PC b) On the other hand, under the car search exception, can search anywhere in the car for which there is PC, which in some circumstances might be the whole car; BUT with SILA, ONLY the passenger compartment is fair game iv. Plain View: justification for a warrantless seizure 1) If officers are lawfully on the premises, they may lawfully seize items that they discover on the premises in plain view that they have PC to believe contains seizable E 2) An article is in plain view if: a) The police officer observes the object from a lawful vantage point i.e., the officers presence is not in violation of the 4th A (Horton v. CA) i) Generally, an officer will be in a lawful vantage point during: (1) the execution of a valid search warrant; (2) an in-home arrest pursuant to an arrest warrant; (3) a search justified under an exception to the warrant requirement; or (4) an activity that does not constitute a search and, therefore, falls outside the scope of the Fourth Amendment b) The police officer has a lawful right of physical access to the object i.e., an officers ability to view an object is not necessarily accompanied by authority to seize it (e.g., an officer may view marijuana growing in a suspects backyard from the street but nevertheless needs a warrant to search the suspects property) c) Its nature as contraband, fruit, instrumentality, or evidence of a crime is immediately apparent upon observation, i.e. no further search is needed i) AZ v. Hicks an officer lawfully searching Ds apt for E of a shooting noticed expensive stereo that he suspected were stolen. He moved the components to read the serial #s to headquarters, and they were confirmed stolen, so he seized them. 20

Lance Baker Crim. Pro. 2012 HOLDING: the seizure was UNCONSTITUTIONAL b/c the fact that the stereo was stolen was not immediately apparent and the moving of it to get the serials #s = a separate search w/o PC 3) The discovery of E in plain view must be inadvertent a) If an officer anticipates discovery of a particular item, the plain view doctrine does NOT cure his failure to obtain a warrant or to include it in a warrant to search for other items. b) In such cases, the warrantless search and seizure of such object violates the 4th A (Coolidge v. NH) 4) Plain Touch During an otherwise valid Terry pat-down (or frisk), if an officer discovers contraband through the sense of touch, then the officer can seize it a) Minnesota v. Dickerson incriminating character of the object MUST be immediately apparent. CANNOT manipulate item to discern its character b) If further probing beyond what is necessary to determine if D has a weapon is necessary to identify the nature of the object, than a warrant is required to continue the search v. Inventory Searches: 1) Police may conduct a search (inventory) of a car w/o a warrant and w/o PC IF it is conducted pursuant to routine operating procedures in that community for conducting an automobile inventory AND any criminal E found can be used against owner (South Dakota v. Opperman) a) In order to open containers found in car, must be part of written procedure 2) Applies to: a) Station House Inventory Search inventory searches of arrestees personal items at the station following an arrest are ok (Ill v. Lafayette) b) Impounded Cars Inventory Search 3) Justifications: a) PC & warrant requirements do NOT apply b/c NOT part of a criminal investigation but is a community caretaking function b) Reasonableness balancing: i) Minimal intrusion and diminished expectation of privacy vs. ii) Legitimate government interests in (1) protecting individuals property from theft, (2) protecting police against false claims of theft, and (3) protecting against dangerous instrumentalities that may be in the car vi. Consent 1) A validly obtained consent justifies an officer in conducting a warrantless search, with or without PC 2) If the officer discovers evidence during a valid consent search, he may seize it without a warrant pursuant to the plain view doctrine 3) Consent is valid IF, based on TOC, it is a) Given voluntarily i) Determined from the TOC (Schneckloth v. Bustamonte) ii) Consent that is the result of express or implied duress or 21

Lance Baker Crim. Pro. 2012 coercion is involuntary iii) Gov has burden to prove by a preponderance of the E that consent was freely given iv) Person does NOT have to be told that he can refuse consent v) A person lawfully stopped by the police, but free to leave, does NOT need to be informed of his or her ability to leave (Ohio v. Robinette) b) Not based on an officers assertion of authority to conduct a search on the basis of a warrant, whether or not the warrant is valid 4) Scope of Search a) A warrantless consent search is invalid if the officer exceeds the scope of the consent granted b) Consenting party can: i) Set temporal limits on search ii) Set scope limits on search iii) Withdraw consent at any time as long as clear (1) BUT if the police uncover something that gives them independent grounds to proceed before consent has been withdrawn, then can continue search as long as there is an exception to the warrant requirement (such as the automobile exception) 5) Third-Party Consent a) Consent to a search by one who possesses common authority over property is valid against another with whom the authority is shared. i) Common authority exists when there is mutual use of the property by persons generally having joint access or control for most purposes. (United States v. Matlock) b) However, if a third party who lacks common authority of the property with the D in fact consents to a search of the Ds property, such evidence cannot be admitted at trial against the defendant. c) A physically present co-occupants express refusal to consent is dispositive as to him, regardless of the consent of a fellow occupant (GA v. Randolph) the search is only valid as to the one who gives consent 6) Apparent Authority a) A warrantless search of a residence is also constitutional when it is based on the consent of a person whom the police, at the time of entry, reasonably believe has common authority over the premises, whether or not that authority is valid. (Illinois v. Rodriguez) vii. Stop & Frisk: The Terry Doctrine 1) Terry v. Ohio made constitutionally permissible warrantless searches and seizures in limited circumstances the Supreme Court ruled that in determining whether the Warrant and PC clauses of the 4th A apply to a given search/seizure, the central inquiry is the reasonableness of the governments activity under the circumstances a) Reasonableness is assessed by balancing the need to search or seize against the invasion the search or seizure entail 2) Reasonable Suspicion: new standard for searches and seizures that are less 22

Lance Baker Crim. Pro. 2012 than ordinarily intrusive a) Suspicion is reasonable if the officer can point to specific and articulable facts that, along with reasonable inferences from those facts, justify the intrusion b) Reasonable suspicion that a crime has been or is being committed may be based on one or more of the following information: i) Police officers personal observations ii) Reliable hearsay iii) Criminal profiles iv) Unprovoked flight c) Length of Detention: i) The justifiability of a seizure on less than probable cause is predicated in part on the brevity of the detention ii) In determining whether a detention was excessive in length, the court may consider whether a less intrusive method was available and whether the police acted unreasonably in failing to recognize it or to pursue it d) RAS to stop a car: i) Although separate acts of a suspect may be innocent in themselves, under the TOC test, when taken together, they may reasonably constitute grounds for a search ii) US v. Arvizu Border patrol agents stopped a car near a high drug trafficking area. Individually, the E was not sufficient for RAS, but TOC = RAS: (1) set off motion censor in the area, suggested that driver was trying to circumvent the checkpoint (2) coincided with shift change, so no officer would be there (3) Minivan, with 2 kids in back whose legs were propped up on something (4) kids started waving as if being instructed e) Anonymous Tips: i) Alabama v. White: Acting on an anonymous phone tip that someone would be leaving a building with drugs and drive to a hotel, police stopped D and searched her car after corroborating her non-criminal behavior predicted by the informant. HELD: RAS can be established with information different in quantity or content than that required to establish PC, and can arise from information less reliable than that required to show PC. (1) Although this was a close case, the range of details actually corroborated by the officers imparted some degree of reliability to the informants other allegations (2) Predicting future behavior is a key factor ii) FL v. J.L.: An uncorroborated anonymous tip can NEVER serve as the sole basis for a Terry stop no RAS where there police received an anonymous tip that a young black male wearing a plaid shirt standing at a particular bus stop was carrying a gun and where the police observed a person matching the 23

Lance Baker Crim. Pro. 2012 informants description, but noted no suspicious conduct suggesting criminal activity was underfoot f) Unprovoked Flight: i) Unprovoked flight, when coupled with other factors such as the presence of the police in a high-crime area can constitute RAS to justify a search and/or seizure, at least in the absence of circumstances that suggest the flight is motivated by a noncriminal purposes (Illinois v. Wardlow) ii) BUT flight alone is not enough iii) Inferences to be drawn from flight depend on: (1) time of day (2) # of people in area (3) character of neighborhood (4) whether the officer was in uniform (5) way runner was dressed (6) direction and speed of flight (7) whether persons behavior was otherwise unusual 3) Terry Stop: a) Terry v. Ohio: on the belief that D was casing a store, a police officer seized D and patted him down for weapons. i) The court found that the brief restraint and pat-down did constitute a search and seizure. ii) Applying the reasonableness balancing test, the Court weighed (1) societys interest of effective crime prevention and detection (which would be impaired if the police could not confront suspects for investigative purposes on less than probable cause) AND the polices legitimate immediate interest in ensuring that the suspect is not armed, against (2) the invasion of Ds personal liberty iii) Held: police conduct = CONSTITUTIONAL - when an officer has reason to believe that criminal activity may be afoot and that the suspect may be armed and presently dangerous, the officer has the constitutional authority to conduct a limited search of the outer clothing of the suspect for weapons, without probable cause or a warrant. iv) Authorized 2 types of police action on less than PC: (1) If officer has RAS that criminal activity is afoot, she can briefly seize someone for investigatory purposes (2) If, after such a stop, the officer has RAS that the person is armed and dangerous, she can then perform a patdown or frisk for weapons 4) Terry Frisk more intrusive than a Terry stop a) a Terry frisk requires reasonable articualable suspicion that the person is armed and dangerous b) Purpose: The purpose of a Terry frisk is to protect the officers safety and is limited to a pat-down of outer clothing to determine whether the suspect is armed 24

Lance Baker Crim. Pro. 2012 i) Although the appropriate manner of the protective search depends on the specific circumstances, generally, the proper technique, as approved in Terry, is as follows: (1) If an officer feels no object during a pat-down, or feels an object that does not appear to be a weapon, no further search is justifiable. (2) If the initial pat-down with no further touching provides the officer with PC for believing that an object felt is contraband or other criminal evidence subject to seizure, he may pull out the object without a warrant, as part of the plain-touch doctrine. (3) If the officer feels an object that he reasonably believes is a weapon, the officer may conduct a search by removing the object from the suspect. (4) If the object he pulls out is a container, he may feel the container to see if it might contain a weapon inside. (5) If his suspicions regarding the container are not reasonably dispelled by its size, weight, and feel, the officer may, at a minimum, retain possession of the container. (6) If the container could not reasonably contain a weapon, it may not be searched or seized 5) Continuum of Police-Citizen Contacts a) Consensual Encounter 4th A seizure i) NO PC or reasonable suspicion needed ii) Person is free to leave b) Stop for Investigative Purposes (Terry Stop) = 4th A seizure i) Need reasonable suspicion less than PC ii) Limited in scope (time, what officer can do) less than arrest c) Arrest = 4th A seizure i) MUST be based on PC 6) A Terry stop can transform into an arrest if the seizure is prolonged or more intrusive than necessary a) Factors to consider: i) Was the suspect detained to sustained interrogation? ii) What was the duration of the detention? (1) Was it longer than necessary? (2) Did the police fail to diligently pursue their investigation? iii) Was the person ever told she was free to go? iv) Did the police impede the suspects travel, such as by holding on to ID and travel tickets? v) see also Mendenhall factors b) If E is reovered after the seizure has turned into an arrest, Q = was there PC for the arrest? Did the officer learn more info during the Terry stop that provided him with PC to arrest? 7) Property: Courts have extended Terry to protective searches and seizures / frisks of property 25

Lance Baker Crim. Pro. 2012 a) Automobiles: Incident to a lawful stop of a car, an officer can frisk the passenger compartment of a vehicle limited to those areas in which a weapon may be found if the officer has RAS that the suspect (recent passenger of the vehicle) is dangerous and may gain immediate control of a weapon (MI v. Long) b) Houses: Incident to a lawful in-home arrest, police may conduct a frisk of the of the premises if they have RAS that a person might be there who poses a threat to them NOT a full search, only where a person might hide (MD v. Buie) 8) Requesting ID: a) Pursuant to a lawful Terry stop, officers can request ID, but suspects refusal to comply alone does NOT convert RAS to PC for arrest UNLESS the jurisdiction has a stop & identify statute (Hiibel) viii. Special Needs Searches: 1) Special governmental needs beyond the normal need for law enforcement may make the PC and/or warrant requirement N/A 2) If the search is NOT for the purpose of criminal law enforcement, then reasonableness is determined by balancing a) Intrusion on individual b) Government interest served and effectiveness of method 3) The doctrine applies when the government can demonstrate that: a) it is impracticable to obtain a warrant; b) the government interest outweighs the intrusion; c) the immediate objective of the search is one other than to generate E for law enforcement purposes, even if the ultimate goal is non-criminal in nature 4) Public School Searches of Students a) Public school teachers and administrators may search students w/o a warrant IF i) They have reasonable suspicion that the search will reveal E that the student has violated or is violating either the law or a school regulation, AND ii) The search is NOT excessively intrusive in light of the age and sex of the student and the nature of the suspected infraction b) NJ v. TLO Supreme Court upheld search of a female students purse based upon RAS that she was smoking cigs (in violation of school policy), where they found pot. Court concluded that it was simply impractical to expect public school officials to secure search warrants when dealing with school children 5) Drug & Alcohol Testing In limited circumstances, drug and alcohol testing (by taking blood, urine, or breath samples) of public employees and public school students, in the absence of a search warrant and in the absence of individualized suspicion, may be constitutional a) Factors: i) The immediate objective of the testing is not to generate evidence for criminal law enforcement purposes ii) In an employment context, more likely to be ok if employees are working in a job that is highly regulated by the gov 26

Lance Baker Crim. Pro. 2012 assume the risk of testing; in non-employment contexts, persons have a reduced expectation of privacy iii) In the employment context, significant relation b/w job and government employers concern about drug/alcohol use; in nonemployment contexts, there is a significant societal reason for identifying drug users and alcohol abusers iv) Minimal discretion of who will be tested and under what circumstances procedures limit arbitrary application of testing v) Scrupulous care is taken to ensure the dignity of the persons being tested in the specimen collection process vi) A regimen based on individualized suspicion would have been impracticable vii) There exists empirical E of a substantial need for the random testing program in question b) Should not be used to conduct traditional criminal investigations should have no law enforcement purpose too much entanglement c) Drug testing programs have been found NOT to pass the special needs test where: i) The testing was NOT in response to any suspicion of drug use by the target group i) Chandler v. Miller - struck down Georgias requirement that various candidates for state office pass a drug test where there was no fear or suspicion of drug use by state officials ii) The immediate objective of the drug testing was to generate evidence for law enforcement purposes, even though the policys ultimate purpose was a beneficent one i) Ferguson v. City of Charleston invalidated procedures to identify and non-consensually test any maternity patient suspected of drug use who came to a public hospital, where the policy was aimed at prosecuting drug-abusing mothers and forcing them into drug treatment programs iii) Where the special needs exception does NOT apply, a valid search warrant is required in order to conduct the testing ix. Administrative and Non-Investigatory Searches: 1) Building Inspections: a) Except in the case of emergency or consent, a warrant is required to enter a residential or commercial building for the purpose of conducting administrative health and safety inspections therein. i) However, such warrant is NOT based on PC to believe there is criminal activity underfoot. (Camara v. Municipal Court) b) Administrative PC Standard: PC exists to issue a warrant to inspect premises for administrative code violations as long as there are reasonable legislative or administrative standards for conducting the inspection i) Does NOT require individualized suspicion of wrongdoing and ii) May be founded on the basis of general factors such as: 27

Lance Baker Crim. Pro. 2012 (1) the passage of time since the last inspection (2) the nature of the building in question (3) the condition of the entire area to be searched c) Exception: In limited circumstances, warrantless, non-exigent, nonconsensual administrative inspections of commercial premises are constitutional. i) A closely regulated business may be inspected w/o a warrant IF three conditions are met: (1) the administrative regulatory scheme must advance a substantial interest, such as to protect the health and safety of workers; (2) warrantless inspections must be necessary to further the regulatory scheme, i.e., if there is a significant possibility that the subject of the search could conceal violations w/o the surprise element that the warrantless search would allow; (3) the ordinance or statute that permits warrantless inspections must, by its terms, provide an adequate substitute for the warrant, (a) Provide notice (b) Limit the discretion of the inspectors, regarding the time, place, and scope of the search. (NY v. Burger) d) Rationale: i) Historical acceptance of such programs ii) Public interest in preventing dangerous conditions that can NOT be achieved by other techniques iii) Involves limited invasion of privacy less than that for criminal investigations 2) Border Patrol Searches a) Border searches are NOT subject to warrant requirement and are reasonable under the 4th A by virtue of being at the border b) Scope of Search i) Travelers may be detained at an international border or its functional equivalent (an airport where international flights arrive) for a brief search of their person and belongings ii) A person lawfully stopped at a border may be detained beyond the scope of a routine customs search and inspection if agents reasonably suspect that she is smuggling contraband NO warrant needed (US v. Montoya-Hernandez) ii) BUT, scope/length of detention MUST be reasonably related to reason for detention (1) MUST NOT exceed time necessary to either verify or dispel that suspicion was unreasonable c) Roving Border Patrols Traditional 4th A standards apply to searches and seizures conducted by roving border patrol agents i) To stop a car MUST have individualized reasonable suspicion of illegal presence in the courtry or other illegal activity 28

Lance Baker Crim. Pro. 2012 ii) To search a car MUST have PC iii) Requirements must be met regardless of whether it is at or near the border (US v. Brignoni-Ponce) iv) Factors that may justify a brief seizure to determine whether the occupants of a vehicle are illegal aliens include: (1) information about recent illegal border crossings in the area; (2) furtive behavior by the occupants of the vehicle; and (3) E that the car has an extraordinary # of passengers v) Reasonable suspicion may NOT be based exclusively on the fact that occupants of the vehicle appear to be of foreign ancestry (1) US v. Brignoni-Ponce - roving border patrol agents improperly stopped a vehicle to question the occupants solely on the ground that they appeared to be of Mexican ancestry e) Fixed Interior Checkpoints Vehicles may be stopped and their occupants briefly detained for questioning at fixed checkpoints, without individualized suspicion of wrongdoing (Marinez-Fuerte) i) The Court distinguished fixed checkpoints from roving border patrols on two grounds: (1) the lesser intrusion resulting from a fixed checkpoint than random stops on the highway; and (2) the lesser discretion afforded officers maintaining the fixed checkpoints than the roving patrols 3) Checkpoints a) If checkpoint serves a special need, then 4th A requirement of individualized suspicion does NOT apply i) Court applies balancing test instead b) If checkpoint DOES NOT serve a special need, then 4th A requirement of individualized suspicion does apply c) Examples: i) Fixed sobriety checkpoint: police CAN stop cars w/o individualized suspicion (1) Balancing test weighs in favor of gov eradicating drunk driving vs. minimal intrusion on driver (Sitz) ii) Fixed checkpoint where police stop motorists to get info about a recent crime: DOES NOT violate 4th A (Lidster) iii) Checkpoint primarily used for general crime control: UNCONSTITUTIONAL (1) Checkpoint is invalid if the primary purpose is to detect possession and/or use of illegal drugs (Edmund) requires individualized suspicion 3. Arrest Warrants: serves to protect an individual from an unreasonable seizure a. A police officer can arrest a person in a public place without a warrant if: i. The officer has probable cause to believe that the arrestee has committed a felony, or ii. The arrestee committed a misdemeanor in the officers presence (Watson) b. However, a police officer generally may not arrest a person at home without a warrant, absent consent to enter or exigent circumstances 29

Lance Baker Crim. Pro. 2012 i. If a person is standing in the doorway of their home with the door open = public place for purposes of 4th A ii. Payton v New York: 4th A PROHIBITS warrantless, non-consentual entry into a persons home in order to make a routine felony arrest 1) To enter the home MUST have a warrant, UNLESS exigent circumstances or consent 2) The sanctity of the home and its privacy are the too important under the 4th A 3) When you have an arrest warrant, you may enter the suspects home as long as there is PC to believe he is inside iii. Exceptions to Payton: Exigent Circumstances 1) Hot pursuit 2) Imminent destruction of E (PC) 3) Need to prevent suspects escape (PC) 4) Risk of danger to police or others inside or outside of the dwelling (PC) c. Absent exigent circumstances, police officers executing an arrest warrant may NOT search for the person named in the warrant in a third partys home w/o obtaining a separate search warrant for the third party premises (Steagald v. US) d. Knock & Announce Rule: i. An arrest warrant authorizes the police to enter a suspects home only if there is reason to believe the suspect is within ii. The K&A Rule applies - even if the police believe the suspect is at home, they may not, absent special circumstances, forcibly enter a home to execute an arrest warrant unless they first knock, announce their purpose for entering, request admittance, and are refused entry e. Use of Force: i. Deadly Force 1) The police may NOT use deadly force to make an arrest EXCEPT where: a) the officer has PC to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others; and b) the officer reasonably believes that such force is necessary to make the arrest or prevent escape. 2) If the officer can reasonably effectuate the arrest with non-deadly force, he must do so. Moreover, when feasible, the officer must warn the suspect to stop fleeing before deadly force is employed ii. Non-Deadly Force 1) All claims of excessive force by police, whether deadly or non-deadly, are to be evaluated according to the reasonableness standard 2) Factors that may bear upon the reasonableness of the officers use of force in a given case: a) The seriousness of the crime committed/being committed b) The extent to which the suspect poses an immediate threat to the safety of others c) The extent to which the suspect is resisting arrest or attempting to escape F. The Exclusionary Rule: 1. General Rule: E gathered in violation of the 4th, 5th and/or 6th A is NOT admissible in a criminal trial in the prosecutions case in-chief against the D 2. Purpose: judicially created rule to deter police misconduct 30

Lance Baker Crim. Pro. 2012 3. Exceptions: a. Non-Trial Criminal Proceedings: illegally seized E may constitutionally be introduced in a variety of non-trial criminal proceedings including: i. grand jury proceedings, ii. preliminary hearings, iii. bail proceedings, iv. sentencing, and v. proceedings to revoke parole b. Impeachment at Trial: A prosecutor may introduce E obtained from a D in violation of the Fourth Amendment for the limited purpose of impeaching the Ds: i. Direct Testimony; or ii. Answers to legitimate Qs put to the D during cross-examination c. Good Faith Exception: i. E obtained by a police officer in reasonable reliance on a search warrant that is subsequently found invalid may be admissible (United States v. Leon) 1) It is necessary that a reasonably well-trained officer would have believed that the warrant was valid ii. Circumstances suggesting invalidity of Warrant: 1) the magistrate who issued the warrant relied on information supplied by an affiant who knew that the statements in the document were false or who recklessly disregarded the truth; 2) the magistrates behavior was so lacking in neutrality that it would have been apparent to a reasonable officer, e.g., where the magistrate acts as a rubber stamp for the police by signing the warrant without reading it, while in the presence of the officer who later claims reliance; 3) the warrant is based on an affidavit lacking sufficient indicia of reliability, e.g., if a warrant is issued based on a wholly conclusory affidavit; 4) the warrant is facially deficient in that it fails to particularize the place to be searched or the things to be seized. iii. DOES NOT cure improperly executed warrants 3. Fruit of the Poisonous Tree Doctrine: a. In general, the exclusionary rule extends not only to the direct products of an unconstitutional search and seizure but also to ancillary evidence that results from the illegal search b. Exceptions: i. Independent Source Doctrine: E that is not causally linked to unconstitutional government activity is admissible pursuant to the independent source doctrine. The doctrine applies if the challenged E is: 1) first discovered during lawful police activity; or 2) initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. a) Murray v. United States: Agents saw pot when they illegally entered a warehouse, then obtained a search warrant w/o using any information discovered during the illegal entry, re-entered the warehouse, and seized the pot which was used to convict Murray. HELD: E initially uncovered, but not seized, during an illegal search will not be suppressed if the police later obtain a search warrant which does NOT rely on any facts discovered during the illegal search, and then seize the E during a second search pursuant to the warrant 31

Lance Baker Crim. Pro. 2012 ii. Inevitable Discovery Doctrine: Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means. 1) Nix v. William: Police learned the whereabouts of the victims body by questioning the D in violation of his 6th A right to counsel. A search for the body had been under way, but was called off when the D revealed the bodys location. The Supreme Court held that E concerning the body was admissible b/c it inevitably would have been discovered by the searchers w/o the unlawful interrogation iii. Attenuation or Dissipation of Taint Doctrine: that otherwise qualifies as fruit-ofthe-poisonous-tree may be admissible if its connection with the illegal police activity is so attenuated that it is purged of the taint (Wong Sun) 1) Factors in determining if taint is dissipated: a) Temporal Proximity the shorter the time lapse b/w 4th A violation and acquisition of challenged E, the more likely the E is tainted b) Intervening Event the more factors that intervene, the more likely to loose taint i) Intervening act of Free Will can remove the taint of an earlier 4th A violation. (1) Won Sun: upon his release from jail after his unlawful arrest, D later voluntarily returned to the police station a few days later and provided a written statement. The Court found that the voluntary nature of the defendants conduct removed from his statement any connection with the initial violation the statement had become so attenuated as to dissipate the taint (2) However, the Court has warned that Miranda warnings alone do NOT assure that statements are of sufficient free will as to purge the primary taint of unlawful arrest. (ILL v. Brown) (3) Therefore, if the police arrest a suspect on less than probable cause, administer Miranda warnings, obtain a waiver from the suspect, and thereafter secure a confession, the question of whether the subsequent statement was the product of the suspects free will must be determined based on the totality of the circumstances, including: (a) voluntariness of the statement (b) length of time b/w unlawful conduct and confession (c) purpose and flagrancy of the police misconduct (d) presence or absence of an act of free will by D (e) intervening circumstances c) Flagrancy of the Violation: E is less likely to be free of taint if the 4th A violation was flagrant rather than unintentional d) Nature of the Derivative E: Some E, by its nature, is more susceptible to dissipation of the taint than other E, e.g., verbal E is more likely to be 32

Lance Baker Crim. Pro. 2012 admissible than physical E II. 5th Amendment: [n]o person shall be compelled in any criminal case to be a witness against himself. A. Privilege can be applied only if: 1. Ds statements are testimonial in nature (i.e. not real or physical E, such as blood samples, fingerprints, etc.) 2. The response might be incriminating (i.e. provides a link to crime); and 3. The testimony may be used against the D (if the D is wholly immunized or if the statute of limitation on the offense has run, the privilege cannot be invoked) a. Chavez v. Martinez: Because D had not been charged with a crime there was no 5th A violation, b/c statements were not introduced against him in a criminal proceeding B. Framework: 1. Was the confession coerced (the product of police coercion)? a. Due process clause 5th A (feds) and 14th A (states) b. 5th A privilege against compelled self-incrimination 2. Was the state obtained as a result of custodial interrogation? a. If yes, were all the requirements of Miranda followed? 3. Was D entitled to counsel pursuant to Miranda? C. Two Parts: 1. 5th A Privilege Against Self-Incrimination prohibits compelled confessions 2. 5th A Due Process Clause prohibits admission of involuntary confession for ANY purpose a. 14th A Due Process Clause applies to the states 3. If violation of either the 5th A or general DP, the exclusionary rule is ABSOLUTE a. Coerced confessions may not be used at criminal trial FOR ANY PURPOSE, i. May NOT for impeachment ii. No good faith exception b. FOPT applies D. Due Process Clause - Confessions: Before a confession of guilt will be allowed to be admitted into E, the trial judge must find that it was voluntarily made, as required by the 5th & 14th As. 1. Purpose: the requirement that confessions be voluntarily made serves 3 purposes a. the interest in trustworthy E b. the preservation of individual freedom of choice, and c. the deterrence of unlawful police conduct 2. Determining Voluntariness a. State action is required (i.e. a government agent must be coercing confession i. Colorado v. Connelly: Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal D or Due Process b. The Government has the burden of proving that a confession is voluntary in order to admit it into E c. Test = TOC : whether the confession was the product of an essentially free and unconstrained choice by its maker i. Factual inquiry turns on 1) conduct of law enforcement officials in creating the pressure, and 2) the suspects capacity to resist that pressure ii. The ultimate inquiry is whether the suspects will was overborne or whether the confession was the product of a rational intellect and free will 1) Ones will is overborne if the statement is NOT the product of an essentially free and unconstrained choice by its maker 33

Lance Baker Crim. Pro. 2012 2) Judged on a subjective basis iii. Factors: 1) The manner of interrogation: length and # of sessions, # of interrogators, physical conditions and deprivation of basic bodily functions 2) Use of force and threats of force a) If use of force is causually linked to the confession, then = involuntary b) Arizona v. Fulminante: Jailhouse snitch promised cell mate protection if he told him about crime, then went and told cops about it. Court said this was involuntary b/c it was based on a fear of violence any direct threats of physical violence renders confession invalid 3) Use of psychological pressure 4) Use of deception to secure a confession (Spano v. NY) a) Some deception is fine police can claim they have E when they dont 5) Ds personal characteristics: Age, level of education, and mental condition of suspect 6) Promises of leniency MAY render a confession involuntary but not always 3. Privilege Against Self-Incrimination: no person shall be compelled to be a witness against himself a. Fundamental Right applicable to the states (1964) b. Essentially has come to be same line of reasoning as DPC cases and same test (TOC) and factors apply c. Martinez v. Chavez The text and history of the 5th A right indicates that the 5th A is NOT violated unless and until D is a compelled witness against himself i. If police coerce a confession, but that confession is never used against him at trial (not forced to be a witness against himself), than NO 5th A violation ii. BUT court suggested that the general DPC right may be violated as soon as the confession is coerced, even if not used at trial 4. Miranda Rights: To combat the inherent coerciveness of police interrogation and make it more likely that statements obtained are voluntary, the Supreme Court ruled that when a law enforcement officer interrogates a suspect in custody, the officer MUST inform the suspect of his rights, warn him of the consequences of waiving those rights, and obtain a waiver; otherwise any confession made is inadmissible at trial to prove the suspects guilt a. Miranda v. Arizona Holding: any statement obtained as a result of custodial interrogation may not be used against the speaker, UNLESS the prosecutor proves that the police provided certain procedural safeguards to secure the suspects 5th A privilege against self incrimination i. Dickerson: Miranda is a constitutional decision b. Warnings: D must be informed, prior to custodial interrogation, that: i. He has the right to remain silent; ii. Anything he says can be used against him at trial; iii. He has the right to the assistance of a lawyer; and iv. If he cannot afford a lawyer, the government will provide one at no cost to him v. Warnings do NOT have to be given UNLESS subject to custodial interrogation 1) Even if suspect is in custody, warnings are not required unless also subject to interrogation (therefore, volunteered statements do not violate Miranda) c. Custodial Interrogation: questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way i. Custody: a person is in custody if hes been deprived of his freedom of action in any significant way by the police 1) The standard = whether, based on TOC, and assessed objectively, there was a 34

Lance Baker Crim. Pro. 2012 formal arrest or restraint on freedom of movement of the degree associated with a formal arrest (Berkemer v. McCarty) 2) Objective test whether a reasonable person under the circumstances would feel that he was not free to leave (effectively under arrest) a) The officers or the individuals state of mind is irrelevant 3) Factors: a) Whether suspect was informed that questioning was voluntary or that they were NOT under arrest b) Whether the suspect had unrestrained freedom of movement during questioning c) Whether the suspect initiated contact with authorities or voluntarily acquiesced to answering questions d) Whether strong-arm tactics or deception was used to get the confession e) Whether the atmosphere of questioning was police dominated f) Whether the suspect was arrested after questioning g) Whether the officers pulled out a gun 4) NOT all coercive environments = custody Must look to TOC a) Terry stops custody b) An ordinary traffic stop custody (Berkemer v. McCarty) c) A person who voluntarily accompanies a police officer custody ii. Interrogation: covers both 1) Express questioning and 2) Its functional equivalent = any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect a) Basic negligence standard b) If the police know the person in custody may be susceptible to certain forms of persuasion, any statements or actions designed to play upon such susceptibilities may be deemed the functional equivalent of interrogation c) RI v. Innis a murder suspect was being transported to the police station when the police commented that they hoped that the murder weapon, which had not yet been located, would not be found by any children from a nearby school for the handicapped. In response, the suspect, who had previously requested a lawyer, revealed the location of the gun. The Court held that the comments were NOT the functional equivalent of interrogation because it found: i) the comments were brief ii) the comments were not particularly evocative iii) the suspect was not disoriented or upset when comments were made iv) there was no E that the police should have known that the suspect would be susceptible to an appeal to his conscience 3) An undercover officer who questions a suspect interrogation a) No coercive atmosphere to dispel when suspect doesnt know he is talking to a police officer b) Voluntariness is still an issue 4) Volunteered statements (spontaneous remarks, not made in response to 35

Lance Baker Crim. Pro. 2012 questioning) are NOT covered d. Right to Remain Silent: i. Once warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation MUST cease ii. The request to remain silent must be scrupulously honored, but the police are NOT precluded from attempting to interrogate the suspect under different circumstances 1) Michigan v. Mosley: The Supreme Court found the request scrupulously honored where questioning was resumed when the police: a) Immediately ceased the interrogation when D indicated his desire to remain silent b) Questioning was resumed only after passage of a significant period of time (2 hours) c) New Miranda warnings were given before questioning was resumed, and d) The later interrogation was restricted to a crime that was not the subject of the first interrogation, conducted by a different officer, and in a different location 2) Whether request was scrupulously honored is a case-by-case determination under TOC a) Factors: i) How long the cops ceased interrogation ii) When they retuned, did they reMirandize D? iii) Did they resume Qing to talk about same crime or a different crime? iv) Did the officers who resume Qing know about the 1st assertion of rights? e. Right to Counsel During Interrogations: i. After warnings are given, if the suspects invokes his right to consult with an attorney, the police MUST cease the interrogation until the suspects attorney is present UNLESS the suspect initiates discussion with the police (Edwards v. AZ) 1) Suspect MUST unambiguously assert right to counsel (Davis v. US the statement maybe I should talk to a lawyer is NOT sufficient to invoke right) a) Test = whether the request was sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel b) Police are not required to ask clarifying questions 2) Applies to ALL interrogation including questioning about wholly unrelated crimes 3) Once suspect in custody invokes Miranda right to counsel, police may NOT reinitiate interrogation about any crime time thereafter unless counsel is present and obtain a valid waiver (Edwards-Minnick Rule) a) The mere fact that a suspect has earlier consulted with counsel is irrelevant the 5th A right to counsel is violated where the D requests counsel, is given the opportunity to confer with counsel, and is then forced to talk to the police w/o counsel present (Minnick v. Miss.) 4) IF / when there has been a sufficient break in Miranda custody, bright line rule of Edwards-Minnick does NOT apply a) Police can re-initiate interrogation provided Miranda is properly 36

Lance Baker Crim. Pro. 2012 followed b) Sufficient break in Miranda custody = 14 days (MD v. Shatzner) ii. Where the suspect initiates communications with the police in the absence of counsel, the police MAY recommence interrogation upon obtaining a valid waiver of his Fifth Amendment rights. 1) A suspect initiates communications, exchanges or conversations by any comment or inquiry that indicates his desire to engage in a discussion relating directly or indirectly to the investigation. 2) Comments or inquiries relating to routine incidents of the custodial relationship, such as a request for water or to use a telephone, do not qualify as communications, exchanges, or conversations and thus do not properly trigger further police interrogation. (Oregon v. Bradshaw) f. Waiver of Miranda i. Even if warnings are given, the prosecution cannot use any statement a suspect provides as a result of custodial interrogation UNLESS the government proves the suspect waived his rights against self-incrimination and his Miranda right to counsel ii. Government must prove a valid waiver by a preponderance of the E 1) A waiver will NOT be presumed from the silence of D after warnings are given OR simply from the fact that a confession was obtained iii. Validity of Waiver in order for a waiver to be valid, it must be given voluntarily, knowingly and intelligently (Colorado v. Connelly) determined by TOC 1) A voluntary waiver = the product of free and deliberate choice rather than intimidation, coercion, or deception 2) A knowing and intelligent waiver = made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. a) CANNOT be knowing and intelligent UNLESS the police issued proper Miranda warnings satisfies knowing and intelligent i) Conn. v. Barrett: D was arrested and given Miranda warnings. D refused to give a written statement, but told police that he had no problem talking with them. Court said this was a valid wavier ii) Oregon v. Elstad: D was arrested in home and questioned w/o first being given Miranda warnings. He made incriminating statements and was taken to the police station. There, he was given Miranda warnings and he signed a written confession. The Supreme Court reversed the decision of the OR Supreme Court holding the written confession inadmissible b/c likely that D had assumed that he had let the cat out of the bag, finding the 2nd confession to have been made pursuant to a voluntary and informed waiver iii) BUT Missouri v. Seibert: where the first confession is part of a scheme designed to negate the effectiveness of Miranda, the waiver before the subsequent confession will NOT be sufficient b) D need NOT know the nature and extent of the crimes the police will be investigating during the interrogation (Co. v. Spring) i) Miranda warnings are NOT crime specific a person is entitled to warnings for ANY crime, even if interrogation is re: a crime 37

Lance Baker Crim. Pro. 2012 he is not in custody for c) Trickery by the police will generally not render a waiver invalid, unless it affects the likely charge or the contents of the warning (e.g., if convince D that he has no right to remain silence despite the warnings) i) Moran v. Burbine: Waiver upheld where police did not tell D that sister had obtained a lawyer for him and falsely told lawyer that wouldnt be questioning D until the next day, b/c D was given Miranda warnings and signed a waiver d) The fact that a D might be suffering from mental delusions will NOT necessarily render waiver invalid (Co. v. Collennly valid waiver where the voice of God ordered D to confess b/c no police coersion.) 3) Factors: a) Suspects intelligence b) Suspects physical and mental condition c) Circumstances surrounding the waiver d) As long as D indicates that he understands his rights and NO police coercion is involved, a waiver will be found to be knowing and intelligent iv. Form of Waiver: 1) Waiver may be express or implied from Ds conduct following Miranda warnings (NC v. Butler) a) Express waiver is neither sufficient nor necessary to render it valid the signing of waiver form can still be coerced 2) All that is required is a course of conduct indicating knowing and voluntary waiver 3) However, a valid waiver may NOT be presumed simply from the suspects silence following the reading of warnings OR from the fact that a confession was obtained g. Exception to Miranda: circumstances in which a statement will be admissible even if there has been custodial questioning w/o warnings, or where waiver might have otherwise been deemed invalid i. Public Safety Exception: allows the police to conduct brief questioning of a suspect prior to Miranda warnings, IF an exigency exists that requires immediate police action to ensure public safety (e.g., to locate a loaded weapon in a public place) (NY v. Quarles) 1) Questions asked prior to the issuance of warnings MUST be directed at the exigent circumstances only 2) Objective standard whether a reasonable officer under the circumstances would think there is a public danger 3) NY v. Quarles: After being told by a woman who was just attacked that D entered a supermarket with a gun, the police stopped and frisked D, and found that he was wearing an empty shoulder holster. The officers handcuffed D and immediately, w/o Miranda warnings, asked him where the gun was. D pointed to some empty cartons. The police retrieved the gun, placed D under arrest, and read him Miranda warnings. The Court held that gun was admissible b/c the warnings should give way to concerns for public safety here as long as the whereabouts of the gun were unknown, it posed a danger to the public that outweighed the benefits of the warnings 38

Lance Baker Crim. Pro. 2012 ii. Covert Custodial Interrogation: Miranda warnings do NOT have to be given when the suspect is unaware that he is being interrogated by a law enforcement officer and gives an otherwise voluntary statement 1) IL v. Perkins: an undercover cop, posing as a criminal, was positioned in Ds jail cell and engaged D in a conversation designed to elicit details of the crime for which he was suspected. The Court held that such statements, although the result of interrogation while in custody, and in the absence of Miranda, were admissible. 2) What makes Miranda warnings essential is the pressure from being in custody in conjunction with knowing that the person interrogating you is a police officer iii. Routine Booking Questions: Miranda warnings need not be given prior to asking a suspect in custody routine booking Qs, such as name, address, date of birth, and other biographical data necessary to complete the booking process (PA v. Muniz) h. Miranda Exclusionary Rule: i. E obtained in violation of Miranda (no warnings, invalid waiver) is automatically excluded from the governments case-in-chief ii. Impeachment Exception: a statement made in violation of Miranda MAY be used to impeach a D at trial (Harris v. NY) iii. NO Fruit of the Poisonous Tree Doctrine: unlike 4th and 5th A 1) The government may call a witness to testify at trial, even if that witnesss identity became known as a result of a statement by D secured in violation of Miranda (Michigan v. Tucker) 2) The government may introduce a Ds own voluntary, post-Miranda, admissions, even if they were obtained as a result of an earlier Miranda violation (Oregon v. Elstad) 3) Physical E obtained as a result of an unwarned but voluntary statement is admissible, even though the statement itself must be suppressed (US v. Patane) 4) HOWEVER, if purposeful violation of Miranda in order to get fruits in and where custodial interrogation is virtually continuous, then post-warning statements are inadmissible

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