Criminal Procedure Outline—Kerr Spring 2008

1. Introa. Sources of Law

i. Original Rights against Fed Govt1. 4th Am—Searches, Seizures, no general warrants2. 5th Am—not compelled to satisfy against yourself3. 6th Am—right to counsel (state couldn’t prohibit, but didn’t have to provide)

ii. Against State govts1. The Road to incorporation…2. 14th Am—due process3. Palko (’37)—is the right implicit in ordered liberty? (Cardozo)4. Adamson (’47)—is the right required by the immutable principles of justice as

conceived by a civilized society? (Frankfurter)5. Until Incorporation, only Grand Jury right and unanimous jury verdict were

considered “fundamental”—selective incorporation6. Rochin v. CA (1952)—shocks the conscience test (no involuntary stomach

pumping)a. some info that Δ was selling narcotics, force open his room door. He’s

sitting on bed, some capsules are on nightstand, he swallows them. He’s taken to hospital and has stomach pumped against his will—find he pills were morphine. Ct finds this violates the DP cl b/c it “shocks the conscience.” Like a forced confession. Still good law, but rare after incorporation. But see Briethaupt v. Abrams (1957)—blood sample okay. So bodily extractions are okay as long as they don’t shock the conscience test.

iii. Federal Supervisory Power1. McNabb v. US (’43)—Fed govt can limit evidence that is admissible in

federal cts—confession obtained after prolonged, unlawful interrogation inadmissible in fed ct.

2. Paynor (’80)—supervisory power doesn’t allow Ct to exclude evidence when Δ doesn’t have standing to challenge search (IRS stole bank official’s briefcase to get ev against Δ)—SIG: limiting fed supervisory power

2. Remedies and the Exclusionary Rulea. Suppression Remedy, Generally

i. In Weeks v. US (1914) the S.Ct. adopted the exclusionary rule for federal cts. ii. created in 1914 when appeals were allowed from criminal convictions

iii. Internationally uniqueb. No exclusionary rule available for:

i. Grand Jury hearings (US v. Calandra (1974)). ii. Knock and Announce Violations (Hudson v. Mich)

iii. habeas corpus petitions1. this is b/c as long as the prisoner had a full and fair opportunity to assert the

violation during his state proceeding, he can’t raise it againiv. Some Administrative Hearings

1. IRS tax collecting; INS deportation; parole revocationc. Wolf v. Colorado (1944)—Frankfurter says DP Cl incorporates the 4th Am, but not

suppression remedy—overruled by Mapp v. Ohio in ‘61d. Mapp v. Ohio (1961)—exclusionary rule applied to states

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i. enter Ms. Mapps’s housing looking for someone wanted for bomb questioning. She won’t admit them w/o a warrant—they show her fake warrant. In house-wide search, find obscenityconviction.

ii. HELD: The 4th Am exclusionary remedy is incorporated against the states, so the obscene material that was illegally seized may not be admitted.

iii. Reasons; More states have adopted exclusionary rule—more fundamental; Deterrence; Uniformity

e. Policy for and against exclusionary rule:i. this is not really a fundamental rule—why not let the states experiment to find a

workable ruleii. Possible remedies

1. police discipline, criminal prosecutionbut conflicting interests of police supervisors and prosecutors, and may not account for officer who acted in good faith but was over-zealous

2. civil actionbut not economic damage, jury might be biased against criminals, and bivins actions (§ 1983) usually filed only by innocent.

3. Exclusionary Ruleofficers have an incentive not to violate rights b/c they will lose the case if they do

f. US v. Leon (1984)—Good Faith Exceptioni. Police executed a search under a warrant with insufficient probable cause (the

affidavit in support of the warrant was primarily based on the word of a confidential informant of unproven reliability).

ii. HELD: exclusionary rule does not apply to evidence acquired through an invalid warrant b/c doesn’t serve same deterrent effect.

iii. Rule: Must be (1) objectively reasonable reliance on warrant; and (2) reason to believe that it was properly issued. The evidence will be suppressed when (1) mislead the mag or judge; (2) magistrate abandoned his judicial role (i.e. no longer neutral); (3) affidavit so facially invalid there can be no reasonable reliance.

g. Hudson v. Michigan (2006)—knock and announce rule (constitutionalized in 1995)—no suppression remedy for violation b/c out of scope with the wrong and no incentive to break this rule.

3. What is a Searcha. Olmstead v. US (1928)—bootlegging case

i. Olmstead was bootlegging alcohol into the US from Canada. Phones were rare at the time, but O had one and the police bugged it and then used that as evidence to convict him.

ii. S.Ct says this is not a search. There was no trespass, as the govt was on a public street, listening to a payphone.

iii. Dissent: You create a virtual sphere of privacy, and gov’t broke into that sphere here.iv. SIGthrough the 1940s and 50s, the rule is that the 4th Am only protects certain

protected areas.b. Katz v. US (1967)

i. Δ convicted of gambling after FBI monitors his conversations on a public phone. They taped a microphone to the roof of the booth.

ii. This is a search. Switch rule so that 4th Am protects people, not places. iii. Δ had closed himself offhe had an expectation of privacy in the phone booth. iv. Rely on vital importance of phone booths—how does this interplay with rise of cell

phones? No other reasoning to back it up.v. Harlan, Concurring,

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1. 4th Am began by protecting places (house, etc) b/c that’s where people really expect privacy, but it’s about your expectation.

2. The test is what a reasonable person expects:a. Subjective elementdid person in fact expect privacyb. Objective elementdid govt’s conduct violate a reasonable

expectation of privacyc. What is protected—Katz applied:

i. Actions or conversations that are open or exposed to the public are not protected, e.g. in your house by the window with the blinds up, or a conversation in a public place.

ii. Content of the trunk of your car—home like so protectediii. E-mail—like a letter (a virtual home)—protectediv. Bag checked on flight—there is a border exception for intl travel, but you have some

expectation of privacy on domestic flights (e.g. couldn’t determine your computer is a bomb, then search your drive)

v. GPA/medical records—depends where govt got it (did they find it on the street, or break into your house to get it)4th Am protects against gov’t acts, doesn’t protect the info itself

vi. secluded area on public park—No expectation b/c public property, unless park says you may pitch a tent or something

vii. Office contents—treated somewhat like homes if it’s yours (i.e. you may lock it) but not if it’s open (i.e. cashier)

viii. Prison—Hudson v. Palmer: there are no 4th Am rights in prison. Inmates do have an expectation, but it’s bad policy.

d. Kyllo—thermal imaging is a searchi. thermal imaging device used to find Δ’s heat lamps used for growing marijuana.

Thermal imaging devices are not in general use, so they are protected against.ii. Scalia’s majority approach doesn’t apply the reasonable expectation of privacy test

(thinks it’s circular)iii. His rule: if a device obtains information about the interior of the home that

would otherwise be obtained inside, then it is a search, unless it is with an instrument that is in public use (like glasses or a flashlight).

e. Dunn—Open Fields Testi. There was physical trespass onto Dunn’s land—he owned a barn, and there was an

area that was fenced off around that. The police climbed over a few fences to have a look, but did not go over the fence that surrounded his house. They peer over the fence to look at but not enter the barn. The barn is 50’ from house.

ii. The police did not enter the “curtilage” of the housearea around the house that is like an aura. It only extends so far, and the area beyond the curtilage is the “open field”—majority says that the police were in an open field, which 4th Am doesn’t protect

iii. 4 factor test: 1. proximity to home2. whether the area is within an enclosure around the home3. the nature of the uses of the area4. steps taken by the resident to keep the area private

iv. Note: this test only works with physical land, and includes places where ppl normally go, e.g. govt can walk up driveways, or places you might expect a visitor to go.

v. Brennan, Dissent: (fill this in)

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vi. NOTE: reasonable expectation of privacy test may defeat this, as in CA v. Ciraolo (’86) and Fla v. Riley (’89) when there was no search of suspect’s fenced in backyard (in his curtilage) or partially covered greenhouse because it was done by a naked eye observation from an aircraft flying at legal heights.

f. Greenwood—going through public trash okayi. police look through Δ’s trash.

ii. There is protection for trash in your home, but not in the dump (1st Cir allows them to reassemble shredded documents)

g. Caballes—drug dogs okayi. Car is by side of the road, dog is brought around the car, and signals that he smells

drugs.ii. This is not a search. Dogs only sign when they smell drugs, but you don’t have a

reasonable expectation of privacy in possessing drugs (seems circular)iii. Souter, Dissent: a dog is like a thermo-imaging device, and is they are not in

common useh. Riley—aerial surveillance okay

i. flew a helicopter over Δ’s house, say he was growing drugs in his greenhouse. Cops knew they couldn’t get around the Open Fields test w/o the helicopter.

ii. White’s plurality—this is not a search—helicopters are not rare and the helicopter was in public airspace (not too low) so broke no laws. The cops are not required to avert their gaze.

iii. O’Connor, Concurrence—helicopters are common, so it’s okayiv. Another concurrence—helicopters are uncommon

i. Tests to determine whether there’s a “reasonable expectation of privacy” (from Kerr’s law review article)

i. Probabilistic—if the odds are high that other people or the cops would not have pried into a person’s affairs and discovered the information, that person had a reasonable expectation of privacy; as the odds decrease, it is less likely that there is a reasonable expectation (e.g. Bond v. US, where it was a search when agents squeezed the luggage on the bus and discovered a brick of drugs, because a person would expect his luggage to be handled a normal way, not squeezed like that)

ii. Private Facts—if the information obtained is private and worth of constitutional protection, it’s a search; the focus is on the information obtained, rather than the method (E.g. not a search when, after white powder seeps out of a FedEx box on its way to being delivered, the FBI tests it to discover it’s cocainethis is because if it was coke, that is never a private fact, and if it’s not coke, no other information is revealed. Since the test can reveal evidence of a crime and nothing else, it doesn’t violate any expectation of privacy.

iii. Positive law—if the government broke a law (other than the 4th Am) in obtaining the information, it’s a search. Forcus on whether the information was available to the general public—if a member of the public could have obtained it legally, then it’s not a search when the government gets it (e.g. Florida v. Riley, where govt didn’t break FAA laws by flying 400’ in the air.

iv. Policy—a reasonable expectation of privacy exists when it should, because consequences would be bad otherwise (more common with the S.Ct than with lower cts)

4. What is a Seizurea. A seizure is any meaningful interference with a possessory interest in an item

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i. Cf with search—here it’s about taking control of items, whereas searches are about gaining access or information.

b. Seizure of Peoplei. Brendlin v. CA (2007)—officer pulls over a car, mistakenly believing that Δ

committed a traffic violation, officer recognizes him as a parole violator. Δ argues that he was seized at the moment the car was pulled over, and the evidence should be suppressed.

ii. Ct (unanimous) says this was an illegal seizureiii. Test: seizures occurs when:

1. Force or a show of authority is used to restrain a person’s movement; OR2. a reasonable person wouldn’t feel free to terminate an encounter with the

police and leave iv. Note: control is they key—societal understanding a cop has control over the driver,

passengers, car, contents, etc when he pulls the car over.5. Probable Cause

a. Did the officer know that quantity of facts and circumstances that would lead a reasonable person to conclude that the individual in question committed a crime (for an arrest) or that specific items related to criminal activity will be found at the particular place (in the case of a search)?

b. Generallyi. If the gov’t has Probable Cause (PC) they can search, seize, arrest, etc. In some cases

they need PC and a warrant.ii. PC makes the searches and seizures reasonable

iii. probability ≠ PC (e.g. if 80% of law students do coke, there’s still no PC against 1 law student w/o individualized evidence)

iv. Search warrants are time-sensitive—must be sure they aren’t “stale”v. Running from the police may be considered as a factor in finding PC, but on its own

is insufficient, Wong Son (police were plain clothed), though it may create reasonable suspicion, Wardlow.

vi. Evidence may be viewed as by a reasonable officer. Gates, Kincaid (7th Cir ’00)c. Spinelli (old, test overruled by Gates)

i. S was convicted of traveling across state limes for gambling. FBI said they had cause b/c FBI followed him, he crossed a bridge and went to an apartment owned by Hogen. The apartment has 2 phone numbers listed under different names, and Hogen is known as a bookie.

ii. S.Ct say there is no probable cause: There is no evidence that the informant was (1) reliable and (2) truthful.

1. anyone can claim that X is known as a bookie, and FBI got this infor from an anonymous tip—don’t know how reliable

d. Ill v. Gates (1983)i. Δ charged with possession of drugs after someone mails an anon tip to the police.

Police confirm that Gates exists and lives at stated address, and that Mr. Gates has the state plain ticket. Gates does fly to Fla, goes to motel room registered under wife’s name, and the next morning, Mr. Gates and a woman drive north in a car w/ Ill. plates. (all per the letter). Cops search the car in Ill and fine 350 lbs of weed.

.ii Police had PC—overrule Spinelli test in favor of a totality of the circumstances test: New test is whether there is a practical common sense judgment that there is a fair probability that evidence is there

1. conclusory statements are not enough

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2. thee must be enough information for the judge to make the calliii. Note: application is the same as the as Spinelli basically

e. Pringlei. cops pull over a car w/ 3 passengers at 3am in Baltimore—Pringle is sitting in the

passenger seat. The officer notices a wad of money in the glove compartment, so searches and finds 5 baggies of cocaine behind the armrest in the backseat. Passengers don’t say anything about who owns what, so police arrest all three. Pringle confesses that the coke was his alone, is charged with possession and intent to distribute. He argues that there was no probable cause to arrest him b/c he was a passenger

ii. HELD: There was PC against all 3 passengers because a reasonably inference could be made that any or all had knowledge of and control over the cocaine. Probable cause is not “undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another.”

f. Note: i. State law determines what Probably Cause is, b/c PC relates to the crime.

ii. PS is the same level of stringency regardless of the severity of the crime.6. Search Warrants and Plain View

a. Warrantsi. Generally

1. Say where you can go and what you can get (person or thing)2. Required by the Const as a reaction to the King’s general warrants

ii. Limitations/Requirements1. 4th Am—warrant must describe with particularity the place and things seized.2. Specificity—

a. for a locationusually a house is specific, sometimes multiple apartments, but e.g. an apartment building with 10 apartments is too vague

b. for the evidence to be seizedpolice aren’t sure what they are looking for, name things that will possibly be there. E.g. for a homicide, name fire arms, letters discussing revenge motive, etc., but must be more specific than “evidence of crime”

c. Maryland v. Garrison (1987)i. warrant authorized search of McWebb and his 3d floor

apartment. Officers did not know that the 3d floor was split into 2 apartments, and without realizing it the officers searched Garrison’s apartment, and found contraband.

ii. HELD: Evidence against Garrison is admissible b/c there is some latitude for objectively understandable and reasonable mistakes by the police.

d. E.G. Duke rape casei. Even though the story was fabricated, the stripper’s story

created Prob Cause. So in the warrant the police listed clothing related to suspects had victim, documents identifying the suspects, documents of ownership of residence, pictures, cameras or video devices that could take pictures, currency up to $400 or any portion thereof, including all $20 bills, electronic data processing or documents about the offense (can take computers away to search b/c have too much information)

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ii. SIG: broad warrants are okay—particularity of place is more important than particularity of evidence to be seized

3. 10 day rule a. gov’t has 10 days to execute a warrant (from C/L, and in FRCP 41)

4. day/nighttime warrantsa. usually have to show a reason why you have to execute a warrant at

night, e.g. if Δ carried the evidence around with him. But, if a day warrant is executed at night, the remedy is not usually exclusion

5. Knock and Announce rulea. United States v. Banks (2003)—must wait usually 10-15 seconds after

knocking and announcing, but the time depends on how long it takes to destroy the evidence soughtreasonableness standard

b. Richards v. Wisconsin (1997)—no per se exception, but if police have a reasonable suspicion that knocking and announcing their presence before entering would be dangerous or futile, or inhibit the effective investigation of the crime, then they don’t have to K&A.

i. no higher standard when no-knock entry leads to destruction of property, US v. Ramirez (1998).

c. Hudson v. Michigan (2006)—There is no suppression remedy for K&A violations

d.iii. Anticipatory Warrants

1. To get an anticipatory warrant, the govt must show (1) that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, and (2) there is probable cause to believe the triggering condition will occur. US v. Grubbs (2006).

b. Consequences/Warrant Reviewi. when Ct reviews a warrant, they measure the facial validity of the warrant by

assessing the particularity and whether there is PCii. Note: in Leon case, if state gets a warrant that is facially invalid, the evidence is not

excluded if the error was minor as long as there was good faith, and an objectively reasonable basis for the officers to believe that the warrant was valid.

iii. effect of Leon: officers have some insulation to get warrants when PC is iffy; but, encourages to get warrants when they know they don’t have PC, but they know the judge is easy. It’s hard to enforce the good faith requirement.

iv. No suppression for filing errorsc. Search/Detention of people at place of lawful search

i. Ybarra v. Illinois (1979)1. police frisked patrons of a tavern while it was searched for narcotics pursuant

to warrant, and found heroine in Ybarra’s pocket.2. HELD: A person’s mere presence in a place suspected of criminal activity

does not gice rise to justification to search that person.3. Cf with Wyoming v. Houghton (1999)

a. May search passenger and his belongings in an automobile being lawfully searched b/c there is less of an expectation of privacy in a car, and there is a greater likelihood of complicity with the driver.

ii. Michigan v. Summers (1981)1. When searching an apartment, officers may detain the person for the

duration. Ct reasoned that existence of probable cause to search home

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provides an adequate basis for suspecting criminal activity on the part of its resident, which justifies the detention.

2. Detention is only a minor infringement of liberty, this prevents flight, and this facilitates orderly completion of the search (e.g. person can open locked closets for the police).

d. Plain view i. when the agents discover evidence outside of the scope of the warrant, they may seize

it if it’s in PLAIN VIEW.ii. The incriminating nature of the evidence must be immediately apparent.

1. e.g. contraband may be seized, but not a tax form, since that involves some analysis

iii. Arizona v. Hicks (1987)1. Lifting stereo components to read the serial numbers on the equipment and

matching those numbers (by way of a telephone call) with stolen items was deemed beyond the scope of the plain view doctrine b/c the goods’ incriminating nature was not immediately apparent, i.e. police didn’t have probable cause based solely on what was exposed to view.

iv. It is irrelevant that the evidence may be of an unrelated crime1. Policy: judicial economy when you already have PC; BUT, this may lead to

pretextual searchesv. Horton v. California (1990)

1. Court dispensed with the requirement (in Coolidge v. NH (’71)) that the evidence in plain view be found inadvertently.

2. Officers had PC to believe that stolen jewelry and guns would be at Δ’s house, but warrant only specified jewelry, and Δ moved to suppress guns that were found in plain view, but lost.

3. Ct didn’t want to inquire into the state of mind of the officers.vi. MN v. Dickerson (1993)Plain view expanded to other sensory perceptions (in that

case, plain touch for feeling drugs in a Terry frisk)7. Arrests and Searches of Persons

a. Generallyi. this area of law is still very unsettled

ii. judicial review of arrests is immediate, unlike searchesiii. The probable cause is the same as for searches, but for arrests it’s that the person

committed the crime. iv. When a person is arrested, they are usually put in custody, processed (prints, etc),

maybe some questioning, either let out on bail or detained. v. If a person is detained, they have a right to a hearing to determine whether there was

probable cause for their arrestGerstein v. Pugh (1975) (24-48 hours is a reasonable time (i.e. safe haven) to have this hearing).

b. US v. Watson (1976)—no warrant required for felony arrestsi. They had probable cause to arrest, but didn’t have an arrest warrant even though it

would have been practical to acquire one.ii. HELD: No warrant required to arrest a suspect where probable cause exists that

they committed a felony 1. It is up to the legislature of the jdxn to say what is a felony; in the federal jdxn

a felony is a crime punishable for up to 1 year)iii. Ct applies the C/L Rule:

1. Felony arrest: warrant not required

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2. Misdemeanor arrest: warrant not required if the misdemeanor was committed in the officer’s presence, but if they didn’t see it they need a warrant

iv. Remember the Gerstein rule that if you arrest w/o a warrant, you need a hearing w/in 48 hours to establish PC.

v. Marshall, Dissent:1. There should be a default warrant requirement for felony arrests b/c the harm

of an arrest w/o cause is immediately borne it can’t be undone with a post-hoc hearing. Warrants are good (judges protect people’s privacy) and there is no burden on the government to get a warrant (they must get judicial review either way).

2. Would make an exception only for exigent circumstances—if you see a crime, and the guy will escape while you are getting your warrant, then you may arrest him, otherwise

vi. Policy 1. at hearing you might have hindsight bias as to whether there was PC, but

officer may be more likely to defer to officer’s judgment when he gets a warrant. It’s a wash

2. Little room for officers to abuse this rule, since they need to show PC within a day anyway, and going through a hearing is more trouble than getting a warrant.

3. This way you don’t have to litigate whether there were exigent circumstances to justify a warrantless search, as you would under Marshall’s regime, for something that’s really fact-specific.

vii. Payton v. NY (1980)1. Police may not enter a person’s home to arrest him without a warrant.2. Privacy of the home distinguishes this from Watson.

viii. Misdemeanor Arrests1. you must commit it in the presence of an officer to be arrested w/o a warrant

b/c being arrested is a big abridgement of liberty for something that’s only a misdemeanor.

2. Misdemeanors are less likely to be arrested (b/c arrests are to prevent flight risks, which is less present for lesser crimes) so it’s fishy, and more apt for abuse, to arrest someone for a misdemeanor, and that’s why you need a warrant or officer presence to arrest.

3. The S. Ct. has never sanctioned this rule officially, but Souter loves itc. Excessive Force

i. can lead to a 4th Am violation ii. e.g. shooting and killing a guy for running from the cops is a seizure

iii. balancing test of everybody’s interests. E.g. hurting a guy in a car chase is not excessive force b/c trying to protect the public

iv. brought as a civil cased. Search Incident to Arrest

i. US v. Robinson (1973)1. Officer arrests Robinson for driving w/o a license. Officer pats down

Robison, and finds heroine in his jacket in a crumpled cigarette package. The officer knew it was not cigarettes, and was not worried that it was a weapon.

2. HELD: Every search of person incident to arrest is permitteda. Can search anything on arrestee or in his control (i.e. search his

person, clothes, things he’s carrying, etc)

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3. Policy:a. 2 reasons for a pat down:

i. disarm arrestee/officer safetyii. collect evidence

b. Note: neither is furthered here, b/c there is no other evidence to collect for crime of driving w/o license, and officer did not believe it was a weapon

c. We have this broad rule, rather than balancing test, so that police can enforce drug laws through traffic violations.

4. Note: May open containers found during search of person incident to arrest, but they must be opened contemporaneously with the arrest, US v. Chadwick (1977).

ii. Rawlings v. Kentucky (1980)1. If probable cause exists to arrest, the officer may search before arresting.2. Rationale—they aren’t searching to acquire the evidence to support the

probable cause against the suspect. iii. Whren v. US (1996)

1. officers make a stop in a high drug area of DC for a traffic moving violation, see Whren holding 2 bags of crack when the motion for him to pull over. Whren challenges PCshould be whether a reasonable officer would have pulled them over for the crime stated (i.e. a test that accounts for officers’ intent, when, as here, officers clearly looking for drugs)

2. HELD: officer’s intent is irrelevant, an officer may stop (“seize”) suspect as long as there is PC that stated crime was committed, even if they are looking for evidence of a different crime.

3. Policy:a. officer’s will not testify accurately about their intent, either b/c it’s a

long time ago and don’t remember, or conflict of interestb. This means that police can pull over anyone, because we all break

traffic laws. Racial Profiling, but maybe this is better tackled under the EP Cl of 14th Am.

iv. PA v. Pimms1. officer may make everyone leave the car while (before) he searches. Officer

safety rationalev. Atwater v. City of Logo Vista (1996)

1. Atwater was driving pickup with kids, no one wore seatbelts. Officer yells at her, “We’ve met before, you’re going to jail!” This was a crime with a max penalty of $50, and no prison time allowed. But officer arrests woman.

2. This is Constitutional—no reasonableness requirement for arrest. 3. Ct won’t draw a line between serious and minor misdemeanors—officer may

not know whether an offense is jailable at the time of arrest (e.g. if they are a repeat offender, or if quantity of drugs is >1 gram, etc), and there is a political check b/c ppl become outraged when police arrest ppl for minor offenses

4. O’Connor, dissent—there should be a reason if the officer arrests a person for a citation-only crime.

vi. Knowles v. Iowa (1998)1. Search incident to arrest is premised on arrest actually occurring. Where

officer opts to issue a traffic citation to a suspect in lieu of an arrest, they may not conduct a search.

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vii. PC (w/o warrant) of any violationmay stop and arrestmay search 8. Warrantless Entries and Searches of Premises

a. Police May Not Enter a House without a Warranti. Patton and Riddick (companion cases)

1. Police entered Patton’s home w/o warrant b/c no one answered and found a shell in plain view

2. Police went to Riddick’s house w/o warrant. R’s son answers door, officers see R in bed and arrest him, they find drugs in the bed.

3. Cannot Enter House Without a Warrant In Either Case. 4. Policy:

a. Very intrusiveb. No immediate hearing as with arrest, must bring civil action or motion

to suppress, maybe years laterc. Particularity requirement limits what they can search for and includes

other limitations (e.g. time of search, knock and announce, etc)d. Clear Line (though exceptions)

ii. Steagald v. US (1981)1. arrest warrants must be related to a place, i.e. can’t break into the neighbor’s

house to arrest the suspect2. Note: you may enter a suspect’s own home with an arrest warrant for him if

there is probable cause to believe he is present. You don’t need a separate search warrant of that specific house. There may be an issue, if someone is staying with friends, where the suspect’s own home is.

b. EXCEPTIONS :c. Exigent Circumstances

i. The standard for finding an exigent circumstances exception: 1. The police must be faced with circumstances that would cause a reasonable

person to believe that entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

2. Exigencies are viewed at the time of the intrusion3. The government has the burden of showing that w warrant could not have

been secured in time. ii. Warden v. Hayden (1967)

1. Two cab drivers witnessed an armed robbery and followed the perpetrator into a particular house and summoned the police. Officers arrived within minutes, entered the house, and proceeded to search the house for the robber. During the search they found evidence connected to the robbery and 2 guns, then found and arrested Hayden. Other evidence was offered as evidence at his trial.

2. HELD: Exigent circumstances permit officers to enter a house to prevent the escape of a fleeing suspect. Once inside the officers could lawfully search for the suspect and seize evidence in plain view.

3. Note: officers must have probable cause to believe (1) that the suspect has just committed a crime, and (2) that the suspect is in the dwelling.

4. Ct is unclear as to what creates exigencybalance interests in light of emergency needs

iii. Welsh v. Wisconsin (1984)

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1. Drunk driver drives his car off the road, then stumbles around. Person tells him to stay where he is, but then Welsh enters his home. Police enter home, grab Welsh, arrest him, and in their search incident to arrest they find him to be drunk.

2. HELD: The exigent circumstances did not justify entry into suspect’s home for the non-criminal offense of drunk driving. The gravity of the offense for which the suspect is sought is an important facto to consider in applying the emergency exception.

3. Distinct from Warden b/c DWI is a less serious crime then robbery, and getting Welsh’s BAC is not as pressing as removing an armed robber from a house.

iv. Ill. v. McArthur (2001)1. If there is a situation in which incriminating evidence may be destroyed or

removed, but there is no compelling justification for an emergency warrantless search, police can secure the house and keep suspect out of his house while the officers get a warrant.

v. Vale v. Louisiana (1970)1. Police arrested Vale on the street outside his home, then entered and searched

his home because they argued that his arrest created exigent circumstances that persons inside the house would destroy narcotic.

2. HELD: There is no exigent circumstances where police action created the emergency. Exception would swallow the rule if under these facts they could enter a home w/o warrant.

3. Cf: Knock and Announce rule presumes the police have a warrant that allows them to enter. Police can’t knock on the door of a drug-dealer, then break in his door and enter b/c they fear he’ll destroy evidence w/o a warrant.

d. Search Incident to arrest in a Homei. Chimel v. CA (1969)—

1. Cops come to Chimels house w/ only arrest (not search) warrant to investigate a coin burglary. He is not home, but his wife is. They knock and announce, and start searching. When he comes home they arrest him, he says they cannot search his house, but they say they can. They then find the coins.

2. This is an unconstitutional search—search incident to arrest is limited, when the arrest is in the house, to the area in the person’s immediate control.

3. Protective sweep includes the person of the arrestee (including pockets) and the grabbable space, and areas in arrestee’s immediate control. But must be contemporaneous with arrest

4. Ct never defines ‘immediate control.’ But they cannot search other rooms or concealed areas—can only search areas that suspect could reasonable reach (the area around you is like your pockets)

ii. Police may open packages that they find in arrestee’s immediate control if they are opened contemporaneously with the arrest.

iii. Protective Sweep1. Maryland v. Buie (1990)

a. When police make an arrest they are allowed to look in closets and places that could hold a person. To look beyond the immediately adjoining area, they must have reasonable suspicion based on articulable facts that dangerous accomplices could be there. Note:

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Police can open a closet to confirm there is no person there, but can’t open shoe boxes to find drugs there

b. Policy rationale: officer safetyc. Rule:

i. Closets and spaces immediately adjoining in every case the police may do a protective sweep (bright line rule)

ii. For more extensive search, the officer must have a solid reason to believe there is another dangerous person.

d. Facts that create articulable factors: i. If the person lives with roommates, rather than alone

ii. drug dealing in houseiii. conspiracy case of serious felony, and you are only talking to 1

personiv. Note: there is a low threshold to do a protective sweep

e. SIG: Are supposed to be looking only for other people, but if they see evidence in plain view they may seize it!

2. Front porch Steps Case (look up Payton)a. NO search of the house incident to arrest by waiting for a suspect to

enter his home, then arresting him in his home and searching his home. (But some circuits allow a protective sweep if the officer has reasonable suspicion to believe there are people posing a danger inside the home.)

9. Warrantless Seizures and Searches of Vehicles and Containers a. Automobile Exception

i. The only requirement to search a car is Probable Cause. Originally this was justified under the exigency rationale, as cars are mobile, Carroll v. US (1925), but the Ct no longer relies on mobility to justify warrantless searches of cars, Chambers v. Maroney (1970) (lawful search of car that had been stopped on the road and was later searched at police station). Now probable cause is the only requirement.

ii. California v. Carney (1985)—no warrant to search vehicles1. Δ sold pot for sex in a car/van/motor-home-type vehicle. Police search it w/o

a warrant. Unconst if a house, but this is constitutional if this is a car, because:

a. vehicles can move (getting a warrant limits your ability to make the search b/c there may be e flight risk)

b. you have a reduced expectation of privacy in your car (legal fiction maybe)

2. Limitations:a. Cars that aren’t really cars (up on blocks)

3. Held: Carney’s car was in a parking lot, acting like a car, no need for a warrant

iii. California v. Acevedo (1991)—broad scope of auto-search1. Held: if police are looking for evidence in a car, they can search the car

and its contents, regardless of whether things are in packages—the only limit is probable cause (i.e. can’t search for illegal immigrants in the glove box).

2. No longer have to get a warrant if there is only PC that the evidence is in the container.

3. Ct trying to clean up precedent:

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a. Ross—if there is PC to believe there is contraband in a car, police may search everything in the car (in this case, could search for drugs in a paper bag in the trunk)

b. Chadwick—drugs were in a footlocker that was placed inside a car. Police had to get a warrant, even though in the car

c. Sanders—suitcase in a taxi—could search the car, but not the suitcased. Pre-Acevedo distinctions was between searches for evidence in car,

and packages in cars, but everything is in some packaging4. Reasoning:

a. There is less of a privacy expectation in your car b/c you drive on the public roads and they are subject to gov’t license and regulation

b.5. Steven’s Dissent: Weird effect that package loses protection when it is placed

in a cariv. Wyoming v. Houghton (1999)

1. A passanger’s package may be searched, even if the passenger himself is not suspected of criminal activity, b/c decreased expectation of privacy. PC is the only limit (i.e. must be able to conceal object of search)

2. But PC limits where police can look—e.g. can’t search for a machine gun in an itsy bitsy package

v. Automobile Exception applies to cars, airplanes, trains and boatsb. Search incident to arrest in vehicles

i. New York v. Belton (1981)1. Search incident to arrest in a car includes looking in the interior of the

passenger compartment and containers found there.2. pockets of a jacket found on the rear seat may be opened while the arrestees

stood outside and away from the car, because the articles were in the relatively narrow compass of the passenger compartment of an automobile which the arrestee may reach.

3. Ct chose bright line ruledidn’t matter that arrestees were no longer in the car.

ii. Thorton v. US (2004)1. Δ was arrested in a parking lot (was a recent occupant of his car), police

searched his car incident to arrest, while Thorton was handcuffed in the squad car. Police found a gun in the driver’s seat.

2. This is a valid search incident to arrest3. The rule comes from Belton, but Ct extends the rule to apply it to Thorton

even though he wasn’t in the car when arrested. 4. Rule: police can search passenger compartment of the car, including

underneath seats, in console of vehicle and glove compartment (even if locked)—and they can open any containers. But may not dismantle the car as part of the search incident to arrest, and may not search the truck.

5. Policy: officer safety (but not really6. Scalia, Concurring—the rule should be that when there is a reasonable belief

that evidence relating to the arrest will be found there, the search is okay. Police search b/c they want evidence, not for their own safety

7. Stevens’ Dissent—your privacy interest in your car outweighs the police interest

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iii. NOTE: search incident (but no PC) may search passenger compartment, with PC can search everything

iv. Bertine—Inventory search exception1. arrested for DUI, police put him in custody and impound his car. In an

inventory search, they found a backpack with coke paraphernalia and controlled substances. (Could have left car on the road or parked and locked it)

2. HELD: Searches made in good faith pursuant to inventory policies of seized items are reasonable.

3. Policy: this way, suspect can’t claim that they had stuff in the car that wasn’t returned to them, etc. But it can also be a fishing expedition for the cops

4. Note: there is a good faith requirement here (not hard to meet), but there are no GF reqs in other areas.

5. Also, this is a limited exception b/c impounding a car is a pain.6. Marshall, dissent—too dependent on the police policy—if they have a loose

impounding policy, the exception broadens.10. Stop and Frisk

a. Terry v. Ohio (1968)i. History

1. Until this case, no one understood the 4th Am to apply to street encounters—dad to day policing to keep the peace on the street didn’t happen with King’s agents (didn’t start till 19th cent)

2. 1968 was turbulent year—race riots after MLK was killed, Justices can see smoke rising as they write this opinion

ii. Facts: Officer McFadden sees a guy on the street corner, walks by and looks into a store 12 times. Officer knows his beat well, knows these guys are strangers casing the joint. He stops them, frisks them, finds they have a gun. Charged with a concealed weapon.

iii. Officer didn’t quite have PC, and there was a search and seizure.iv. Ct creates a balancing framework for this narrow search:

1. May frisk to search for weapons if a police officer has reason to believe he’s armed, regardless of whether there’s PC to arrest question is whether a reasonably prudent person would believe that his safety, or that of others, was in danger, based on articulable facts

b. When Terry stop has beguni. Florida v. Bostick (1991)

1. Officers went onto a bus during a drug sweep. They stop and talk to Bostick, ask him questions and ask to search him. Issue was whether there had been a seizure (of Bostic), which depends on whether this was a consensual encounter or a Terry Stop.

2. HELD: Bostic could have left the bus, so it was a consensual encounter, so it was not a seizure.

3. TEST: Ct must look at all the circumstances to determine whether a reasonable innocent person would feel free to leave—but this is out of touch

4. Note the interplay between when consent ends and a Terry stop begins—here, the Ct found it particularly worth noting that the police specifically advised Bostick that he had the right to refuse consent to search his luggage

ii. INS v. Delgado (1984)

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1. INS lines ppl us and asks for their ID to see if people were documented. 2. Ct says this was a consensual encounter where people could have left at

anytime. Interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a 4th Am seizure…Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the 4th Am.”

3. This decision creates a legal fiction to promote a good policy—they want police to be able to talk to people

iii. SIG: Terry stop begins when officer clearly controls where the person is allowed to go. And walking away is not allowed to create suspicion if the Terry stop has not yet begun.

iv. Stop must have a “restraining effect,” US v. Mendenhall (1980).v. Police pursuit does not constitute a stop or seizure Michigan v. Chesternut (1988)

c. Reasonable Suspicioni. Fla v. JL

1. anonymous tip that an Af. Am man at a bus stop with a plaid shirt has a gun. Cops frisk him and he does.

2. HELD: No Reasonable Suspicion because all of suspect’s action were innocent—didn’t do anything suspicious himself. Anyone who wanted an enemy frisked could call in an anon. tip.

ii. Socalao1. nervous guy flying to Miami w/o luggageReasonable suspicion

iii. Ill v. Wardlow (2000)1. Guy runs from cops in a high crime area. The police were driving through the

area in a 4 car caravan, he sees them and splits. They pursue him and seize him.

2. HELD: Running from cops does not always create Reasonable Suspicion, but here it does.

3. Stevens, Dissent: There are a lot of reasons why someone would run, esp in high crime areas—might even be a sign of innocence.

4. Problem—Cts often find in retrospect that there was reasonable suspicion in motions to suppress and even 1983 challenges.

d. Scope of a Terry Stopi. Limited duration

1. less than half hour is fine, as it passes 1 hour it looks less reasonable and more like an arrest

2. US v. Sharpa. can’t round up the usual suspects

3. Fla v. Royera. brought guy into interview room, then moved him to a new place.

Moving him made it more like an arrestii. During the stop, police can:

1. run a warrant check2. license check3. pull out weapons, even handcuff suspect, but ONLY for a public safety issue4. use drug-sniffing dogs on a legitimately stopped car, provided it does not

prolong the stop, Illinois v. Caballes (2005).

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iii. Officers may ask questions1. Ask what there name is2. Questions related to the stop (do you know how fast you were driving)3. May ask these questions with the intent to let ppl incriminate themselves of

something else4. We don’t know yet if police can ask question unrelated to the stop (e.g. Are

there any drugs in the car?)e. Frisks

i. MN v. Dickenson (1993)1. officer feels a small lump in suspect’s pocket, pulls it out, opens it.2. HELD: Frisk must be for weapons only, cannot look for drugsBut where

the item is immediately recognizable as contraband the officer may seize it (Plain Feel Doctrine).

3. different from search incident to arrest.a. but, officer could say he thought there was a tiny weapon

4. Plain Feel doctrine—if ii. Fruit of Poisonous Tree

1. may not include evidence acquired by an illegal search/seizure to gauge suspicious activity

f. Traffic Stopsi. Most lower cts count traffic stops as Terry Stops, but Cf with Whren, where the

rationale was that a traffic stop was a seizure of person. ii. May conduct a protective sweep of automobile if there might be a weapon

iii. Officer must have reasonable suspicion that a traffic violation occurred to do a Terry traffic stop, Deleware v. Prouse (1979) (cannot conduct routine stops to check driver’s license and registration).

g. Protective Sweepsi. expand Terry to allow protective sweeps (Buie) on the reasonable suspicion standard

ii. May to Terry stop of a container if there’s reasonable suspicion that it contains contraband or evidence of a crime, but must be limited in scope and duration. E.g. temporary stop of luggage at airport to let drug-sniffing dogs smell your bag is okay. Place (’83)

iii. conduct a protective search of the surrounding area under suspect’s control, even if he’s out of the car, Michigan v. Long

11. Consent a. Background and Policy

i. If a person consents, then there is no search you’ve made the object of the search public, rather than private

ii. There are two types of consent: from the suspect/target; 3d party consentiii. You have a right to decline when officers ask for your consent to search, and that

can’t be used against you, unless you decline in a suspicious way. But it’s awkward. iv. Consent searches are good policy b/c they let police investigate in a less abrasive

way. Leniency in consent allows for stringent protection of non-consensual searches of home, etc.

v. Even if the person is already under arrest, if they consent to the search their consent is valid, US v. Watson (1976)

b. Schneckloth v. Bustamonte (1973)

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i. At a traffic stop, officers ask “Do you mind if we look around?” Target consents and officers find evidence. Δ argued (and 9th Cir held) that officers had to inform people that they had a right to not consent to a search

ii. HELD: consent to a search will waive 4th Am rights, even where a person has NOT been informed that they have a right to decline, as long as the Ct finds, by looking at the totality of the circumstances, that the consent was voluntary.

iii. TEST: whether a reasonable person in the subject’s position would have felt free to decline the officer’s request.

iv. Ct looks at police tactics to get consent as well as particular vulnerabilities of the subject (age, intelligence, level of education, emotional state), knowledge in fact of the right to refuse to consent is only a factor, not determinative

v. Ct rejects analogy to waiver of trial rights (e.g. right to atty), where waiver must be Knowing, Voluntary and Intelligent, because this is unlike trial rights, or even Miranda (where must know rights before may waive them) b/c this is less coercive (but it’s not really)

c. Thompson v. LA (1984)i. When a daughter summoned the police to her mother’s home to render medical

assistance, she did not consent to an open-ended search of for evidence relating to a homicide committed on the scene.

ii. BUT, remember the plain view doctrined. Things that make consent invalid:

i. False Claim of Warrantif police say they have a warrant but don’t, and you then consent, that doesn’t count

ii. Deceite.g. if police claim to be investigating the neighbors, sometimes that consent is invalidated

iii. Scope of Consentif you consent to them searching your car, does that include a locked bag in your trunk? Ct typically applies a reasonable person standard.

iv. Consent may be withdrawn at anytimee. Third party consent

i. 3d party consent requires Common Authority ii. US v. Matlock (1974)gf consented to search of bf’s room, which she shared with

him. Ct said that “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permitthe inspection in his own right and that the others have assumed the risk that one of their number might permit the common are to be searched.”

iii. Ill v. Rodriguez (1990)1. Police get consent from Δ’s former girlfriend. She lied to police by saying

that she still shared the apartment with him and that she had a key, when in fact she had stolen it. She had in fact moved out 1 month prior.

2. Ct said this was valid consent because police reasonably relied on her consent. When the facts and surrounding circumstances known to the officer warrant a man of reasonable caution to conclude that the consenting party had authority over the premises, consent is valid even if actual authority is absent.

iv. Georgia v. Randolph (2006)1. Police come to residence, Δ’s estranged wife tells them her husband has drugs

in the house. Wife consents to the search, but husband says they may not search his house.

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2. HELD: If the target is present and objects, the police may not rely on 3d party consent

3. Souter, for majority, looked to customary social norms to decide this, but in the case where there’s domestic abuse you could enter (exigency probably) or maybe the consenter would give you enough info to get a warrant.

4. BUT, police can arrest him, put him in the squad car, and then get wife’s consent to search

f. Private Search Doctrinei. if a private person conducts a search, it’s not regulated by the 4th Am

12. Standing and the Fruit of the Poisonous Tree a. Standing

i. A particular Δ derives standing by having a reasonable expectation of privacy that the government has intruded upon (like in Katz), e.g. :

1. a property/leasing interests2. an understanding that the thing/place to be searched is yours3. access to the thing/place (1x is not enough)4. In essence, you need enough of a relationship with the place searched to get

4th Am protection.ii. Rakas v. Ill (1978)

1. Rakas was a passenger in (but did not own) a car that the police illegally searched. Police found shells in the glove box and a sawed off shot gun under the seat. They used this evidence against Rakas. In challenging the search, Rakas claimed a possessory interest in neither the car not the evidence.

2. HELD: Rakas does not have standing b/c the illegal search violated the rights of the car’s owner, not its passengers. Passengers have no reasonable expectation of privacy in other people’s cars, especially in the glove box and under their seat.

3. Note: historically standing was a second requirement, today—and in this case—we talk about who has a reasonable expectation of privacy

iii. Rowlings v. Kentucky (1980)1. Rowlings put his drugs in his friend’s purse, which the police searched

unconstitutionally. He admitted possession of drugs2. HELD: R had no reasonable expectation of privacy in his friend’s purse. 3. Factors: His ownership of the drugs was a factor, but he had no privacy

interest in the place searched (friend’s purse)—(1) he’d known her only a few days, (2) he’d never sought/received access to purse before, (3) he had no right to exclude others from the purse (e.g. that morning a friend had rummages thru her purse for a hairbrush), (4) the precipitous nature of Rawlings placing the drugs in her purse indicated that he failed to take the normal precautions to maintain his privacy, (5) R admitted that he has no subjective expectation that the purse would be free from govt’al intrusion.

iv. Minnesota v. Carter (1998)1. cops look through blinds and see 3 people—Carter, another Δ, and a 3d person

—bagging cocaine in the 3d person’s apt. 2. HELD: Carter had no expectation of privacy in 3d party’s apartment, so even

though peering through the blinds was an unlawful search, Carter lacks standing to challenge it.

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3. Carter had never been to the apt before, was only there for 2.5 hr, only went to the house to package cocaine (Commercial Purpose), so insufficient connection with the location

4. Note: Justice Kennedy was the 5th and decisive vote in this case, and his decision was based on the fact that it was a commercial visit—distinct from a social visit. He thought social guests generally have a legitimate expectation of privacy and so would have protection against unreasonable searches in their host’s home.

5. *Cf. Minnesota v. Olson, where S. Ct. said an overnight guest at a 3d party’s home did have a reasonable expectation of privacy

v. US v. Paynor (1980)—IRS stole bank official’s briefcase vi. Rental cars and drug running

1. most courts have said that if you are in a rental car and your name isn’t on the rental contract, you have no 4th Am protection against a search of the car. This is common in drug running, where the person who did rent the car will not come challenge the search (b/c it’s illegal) so runners have less 4th Am protection.

b. Fruit of the Poisonous Tree i. Generally

1. This is like proximate cause causation (rather than but-for)2. immediate discoveries are suppressed, but things that occur much after the

infraction are not suppressed3. Policy—we don’t want cops to be too nervous, or ruin cases by excluding

evidence that may turn up even 20 yrs later; Also, excluding stuff other than direct fruit serves no deterrent purpose

ii. Nardone v. US (1939)1. gov’t can’t use unlawfully obtained material, and can’t use stuff that it learned

from that materialiii. Wong Sun v. US (1963)

1. Cops arrest Toy on suspicion of narcotics trafficking. Toy makes a statement against Yee that causes police to arrest and search Yee. After finding narcotics in Yee’s bedroom, Yee makes a statement against Wong Sun (Δ). Police arrested and released on his own recognizance. Several days later he returns and makes statements about the narcotics transaction. Later, the arrest of Toy was found to be unlawful for lacking PC, so his statements are excluded, as are Yee’s as they were acquired through Toy’s arrest. But Wong Sun’s statements are sufficiently attenuated from the initial illegality.

2. HELD: Although Wong Sun’s statements were the fruit of the poisonous tree, the taint had been purged by the passage of time and the intervention of Wong Sun’s own free will (his decision to come back and confess)

iv. US v. Ceccolini (1978)1. illegally uncovered evidence led, months later, to discovery of a witness who

testified against Δ. Witnesses testimony was not suppressed b/c Ct doesn’t want to permanently disable a cooperative witness. Witnesses have free will (plays into Wong Sun analysis, but also into inevitable discovery, b/c may come forward)

v. Brown v. Illinois (1975)1. Determine on case-by-case basis whether an unconstitutional arrest means that

a following statement should be excluded.

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2. Look at the statement—if there something about it that suggests that it was the result of the illegal arrest, it will more likely be excluded.

vi. US v. Crews (1980)1. victim IDs Δ, who was illegally arrested. 2. Not the fruit of the illegal arrest so not excluded. Yes, Δ wouldn’t have been

in line-up w/o arrest, but that connection is too tenuous. vii. NY v. Harris (1990)

1. Cops arrest Δ in his home w/ PC but w/o warrant (in violation of Payton), and Δ makes a statement at home and at the station

2. HELD: Statement admitted:a. the police had PC, and could have lawfully arrested him outside his

home b. Δ could have made this statement regardless of violation not a fruit

from him specifically being arrested in his house?c. Also, given Miranda warnings attenuates the taint.

13. Independent Source and Inevitable Discoverya. Generally

i. Proximate causationfruit of the poisonous treeii. But-For Causationinevitable discovery/independent source

b. Nicks v. Williams (1984)—Inevitable Discoveryi. girl disappeared from YMCA building, at the same time Δ was seen loading a

suspicious bundle in his car, and 1 witness sees legs in the bundle. Next day, police find the car, blanket, clothing, begin search for the girl. Δ surrenders to police, but says he wants a lawyer, so while officers drive him from Davenport to Iowa, they are talking to him, telling him about how the girl’s parents want to have a Christian burial, so he should tell them where she is.

ii. The questions violate 6th Am, and Δ is the only source of info, BUT iii. HELD: evidence of the body’s location is admissible b/c police would have found it

eventually. 1. search team was 2.5mi from the body, headed in its direction. 2. If govt can prove that they would have found the evidence anyway, then the

evidence is admissible—good or bad faith is irrelevant b/c there’s no incentive to violate in this case.

iv. RULE: Gov’t must prove by a preponderance of the evidence that they would have eventually found the evidence.

c. Murray v. US (1988)—Independent Sourcei. Cops break into a warehouse under surveillance. First entry—had PC that marijuana

was in warehouse (informant), but enter it w/o warrant. See marijuana (illegal search) Second entry—got a warrant that didn’t mention unlawful search.

ii. S.Ct. vacates and remands for lower Ct to determine whether the police would have gotten a warrant had they not known that there was marijuana in the warehouse. Police must show that they would have gotten the warrant regardless, eventually.

d. Note: these exclusions create no incentive to violate the 4th Am, and only come into play b/c we apply the 4th Am against the states after Mapp.

14. Entrapment and Undercover Investigations a. Generally

i. There is a common law defense against entrapment and one rooted in the DP Cl of the Const.

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ii. If the Ct finds entrapment, not only is the evidence suppressed, but there is a complete bar on prosecution of the offense.

b. Undercover Agentsi. Haffa

1. Bobby Kennedy been trying to get Hoffa (for taking $$ from union coffers), he get evidence against Parton, who agrees to help BK get H by acting as an undercover agent if he lets him out of jail. Parton gets evidence that H is bribing jurors.

2. HELD: The 4th Am is not triggered by a government informant. H said P was like a gov’t agent doing many illegal searches, but Ct says that he was invited into he circle this is a question of misplaced confidence.

3. Also no SDP argument—fails the shocks the conscience test. 4. Warren, Dissent:

a. There is a federal supervisory power that gives Ct power to exclude evidence from federal Cts, when, as here, the person had a reasonable expectation of privacy.

5. Policya. undercover informants are a good way to get otherwise inaccessible

infob. But it’s unjust to let criminals out of jail, they have a motivation to lie

and they don’t need cause to spy on people—against the idea of a free society

c. Entrapmenti. Policy of preventing entrapment

1. it’s a bad way for the govt to act (minority, not federal view)2. it actually causes otherwise law-abiding people to commit crime

ii. Sherman v. US (1973)1. Informant asks Sherman for drugs, he says no. Then informant basically begs,

so S gets the drugs for him.2. HELD: Gov’t created this crime. Ct thinks that everybody has a price. 3. Distinction between “the trap for the unwary innocent and the trap for the

unwary criminal.” Which means, that if the Δ proves inducement, the govt can still prosecute the crime if they can show Δ was predisposed to the crime.

4. Frankfurter, Concurring: it’s not that everyone has a price, but there are something we don’t want the govt to do.

iii. Jacobson v. US (1992)1. Δ convicted of possessing and buying child porn. Govt induced him by trying

to get him to buy it (sent him messages saying it’s not wrong, trying to normalize it for 2.5 yrs). Argue that he had a predisposition to buy this filth.

2. HELD: Insufficient evidence of a predisposition. Ct will look at when govt made contact with target, not just when he made the order.

3. SIG: Govt must also show that they did not create the predisposition.iv. Note: Predisposition and entrapment are decided by the jury. v. If you say “do you want to buy some pot” that’s not entrapment, but if you change the

cost-benefit analysis (i.e. say “I’ll pay you to take this pot”) that’s entrapment. In Sherman, the added benefit was helping a friend.

15. Interrogations a. Generally

i. 3 sources of legal protection re interrogation

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1. 5th Am—can’t be compelled to testify against yourselfa. response to old way where judge interrogated you and then told jury

about itb. In 1960s, police could question the suspect indefinitely, but suspect

didn’t have to answer2. McNabb/Malory Rule

a. when the government arrests a person, they need to be brought before a magistrate promptly.

b. This limits the questioning that the police can before arraignment3. Voluntariness of Confessions

a. Brown v. Missippi (1930)—when police beat a man until he confessed, the Ct found it to be involuntary

b. Ashcroft v. TN—after 36 hours of continuous investigation, the confession was found to be involuntary

c. Policy—coerced confessions are unreliable and reprehensible 4. Note: used to be totality of circumstances to determine voluntariness, and trial

judges had a lot of discretion.ii. Right to Counsel as a limit on interrogations

1. Messiah v. USa. 6th Am right to counsel means that as soon as the suspect asks for a

lawyer, the police can’t talk to him alone at all.2. Escobedo v. Ill (1964)

a. Escobedo was arrested, asked to speak with a lawyer, but before he could, the police set up a confrontation with the victim to make him make incriminating statements

3. SIG: Trial judges had too much discretion under the voluntariness test, so the Ct was using the 6th Am to try to deal with involuntary confessions, but it was messy.

b. Miranda i. 4 Consolidated cases:

1. Miranda Δ was accused of kidnap and rape. He gave a signed confession, which included a statement saying he knew his rights and that his confession was voluntary. No warning of rights.

2. VA v. NY confessed orally to robbery w/o rights warning3. Westover—interrogated by FBI and police, warning only came at end of

investigation.4. CA v. Stewart—Δ confessed to purse snatching w/o warning.

ii. HELD: No conviction based on a confession made during a custodial interrogation may stand unless police warn the suspect of his rights, and the government can prove by a preponderance of the evidence that the waiver was Knowingly, Intelligently and Voluntarily.

iii. Rights:1. right to remain silent2. right to talk to an attorney3. Note: there may be no interrogation until the suspect is told that he has these

rights, then knowingly and intelligently waives them. The interrogation must stop if at anytime he asserts them.

iv. Dissent1. accuses majority of making this rule up

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v. NOTE: if the suspect is not subject to a custodial interrogation, then Miranda does not apply and the voluntariness test does.

vi. Congress tried to overrule Miranda, but the Ct said in Dickenson v. US (2000) that it is constitutionally required.

c. Custodyi. Yarborough v. Alvarado (2004)

1. A 17-yr-old helps commit a crime, his parents bring him to the police station, where cops say it will be a short interview and don’t say the kid is a suspect. The interview lasted 2 hr, during which time the parents were not allowed in the interview. Kid starts talking after 90 min.

2. HELD: Lower ct applied precedent reasonably in ruling that the kid was not in custody.

3. TEST: A suspect is subject to custody if a reasonable person would not feel free to end the interrogation and leave. The standard is objective, based on the suspect’s perceptions.

4. Factors:a. location (familiar or not?)b. durationc. persons present (just law enforcement personnel?)d. A suspect may be in custody before arrested.

5. Precedentsa. Oregon v. Mathiason—suspect was not in custody when he went to

station voluntarily, as here, and had a 30 minute interviewb. Berkerner v. McCarthy—suspect was not in custody during a Terry

stop because even though you don’t feel free to leave at that moment, you don’t feel as if you’ve been taken into custody or arrested.

6. Breyer, Dissent: look at test as stated, rather than as applied in precedent this kid felt like he was in custody

7. If this had been de novo review, Ct probably would have found the kid in custody b/c length of interview

8. NOTE: this case also shows that confessions from juveniles may still be voluntary, and that suspect’s age is only one factor in the totality of the circumstances test.

ii. Custody and Terry Stops1. A Terry stop typically becomes “custody” for Miranda purposes a little before

the full arrest2. SIG: If police bring suspect to station, they may interrogate him without

Miranda warnings if: a. Say “You’re free to leave at any time” in which case a reasonable

person would feel free to leave (unless other indicia, i.e. length of interview); or

b. stay silent, and edge the line of a custodial interrogation.d. Interrogation

i. Rhode Island v. Innis (1980)1. cops read suspect his right, he asks for a lawyer. While suspect is in back of

cop car, the cops talk to each other in the front about the possibility of a little handicapped girl from the local school for the disabled finding the gun that was used in the crime and getting hurt. The suspect interrupts them to say where the gun is.

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2. Held: This was not an interrogation, b/c police could not reasonably have believed their conversation to elicit an incriminating statement.

3. TEST: Interrogation can occur when there is (1) an express question; or (2) an implied question, i.e. words or actions by the police that the police should know are reasonably likely to produce an incriminating response. “Any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”

4. Note:a. police intent is relevant (i.e. whether they wanted to get an

incriminating response)b. police knowledge that a suspect has an unusual susceptibility to a form

of persuasion might be a factor in determining if they should have known that their conduct was reasonably likely to elicit a response

5. Stevens, Dissent:a. Any statement that an average listener would normally understand as

calling for a response is the functional equivalent of a direct question. 6. SIG: The best inquiry is whether this case relates to the interests Miranda was

trying to protect. Miranda was concerned with formal interrogations at the station where cops pushed until the suspect felt compelled to confess; here there’s just a nice criminal concerned with child-safety, no pushing by the cops.

ii. Narrowing/Gutting Miranda…iii. Arizona v. Mauro (1987)

1. Police permitted Mauro and his wife (at her request) to talk together in the police station where he was being held. Both were suspect in the murder of their child. The conversation occurred in the presence of an officer and a visible tape recorder. M made incriminating statements to his wife.

2. HELD: This was not an interrogation. Ct focused on the suspect’s perception and the police’s conduct, and concluded that a suspect allowed to speak with his spouse would not feel he was being coerced to incriminate himself. Police conduct was were not undue psychological ploys.

iv. Illinois v. Perkins (1990)1. While in jail for something else, Perkins tells his cellmate (an undercover

agent) about the murder he committed.2. No interrogation—Miranda was concerned with officers making suspect

respond b/c fear of punishment, here Δ didn’t know agent was working for cops.

v. Pennsylvania v. Muniz (1990)1. Routing booking or DUI questions are not protected by Miranda.2. cops ask routine questions (name, age, address, etc) while booking a suspect

for a DWI, and suspect’s answers show that he’s drunk.3. Note though that one question, “Do you know what the date was of your 6th

bday” was protected b/c it is incriminating based on the content of the answer (when you are 21) and not just its slurred delivery.

e. Waiveri. Silence is not waiver, but waiver may be implied by a statement that they don’t want

an atty followed closely by a statement. ii. Carolina v. Butler (1979)—

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1. Suspect refused to sign the written waiver form, but stated that he knew his rights and agreed to talk about the robbery being investigated and proceeded to admit participation in it.

2. Held: waivers don’t need to be explicit, but rather may be inferred from appropriate conduct of the suspect. Look at the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused.

3. Dissent: if he would talk, but no write his statement down, then he clearly did not understand his rights

4. SIG: Miranda is more about form than substance—if your conduct indicates an agreement to be interrogated, even if the context suggests you don’t completely understand your rights, then there’s waiver.

iii. Knowingly, Intelligently1. Moran v. Burbine (1986)

a. suspect was arrested, his sister had hired an atty for him, who was trying to see him. police told atty that they wouldn’t question suspect until the next day. Meanwhile, police were interrogating suspect, and he waives his rights and confesses.

b. Held: This waiver is valid. Knowledge of outside facts (that an atty is trying to see you) does not affect your ability to understand your right to an atty and the consequences for foregoing that right

c. Others (Moran’s sister, the atty) cannot assert a right for the suspect.d. This deception was okay, but more egregious police deception might

rise to the level of a due process violation. f. Asserted Rights

i. Michigan v. Mosley (1975)—Right to Silence1. Suspect was arrested for robbery, Mirandized, and asserted his right to remain

silent. The interrogation ended. Two hours later another officer gave him a fresh set of warnings and Mosely agreed to talk about an unrelated murder.

2. HELD: If suspect asserts his right to remain silent, the gov’t must scrupulously honor the right to silence, but CAN try attempt to get the suspect to waive his rights at a later time.

3. may return the next day if questioning suspect for a different crime. Look to: time elapsed between interrogations, provision of a fresh set of warnings, subject matter and scope of the second interrogation, and officer’s zealousness in attempting to pursue questioning.

ii. Edwards v. Arizona (1981)—Right to Counsel 1. Suspect asserted his right to counsel and the interrogation ended, but the next

morning, two other detectives sought to talk to him and he refused. The guard says he has to talk to the detectives and takes him to meet them. The detectives then inform Edwards of his rights and play him a taped statement of an accomplice implicating him in the crime. He then indicated a willingness to talk and then made incriminating statements.

2. HELD: If suspect asserts his right to an attorney, the govt is not allowed to talk to him until he’s consulted with his attorney and unless his attorney is present at the time of the questioning.

a. This is b/c govt controls suspect’s access to his atty. iii. Minnick v. MS (1990)

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1. Minnick asserted his right to a lawyer. The govt allowed him to talk to the lawyer, and later police talked to Minnick w/o his lawyer.

2. HELD: Once the suspect asserts his right to counsel, the government may not interrogate him without his lawyer.

3. This is because the Justices don’t want police allowing only a 2 minute visit with the attorney to reset the clock.

4. Note: There is no 6th Am right here b/c he hadn’t been chargediv. NOTE: Edwards and Minnick don’t apply if the suspect is released—they apply only

to the custodial interrogation. If they are put back in custody later, we don’t know how long the right continues.

v. Oregon v. Bradshaw (1983)1. Suspect asserts his right to counsel, then asks the police “what’s going to

happen to me now?” The police responds that the suspect has asserted his right to counsel so can only talk to the officer under his own free will, suspect agrees, they talk about where he’d be taken and what he’d be charged with, and officer says that he should take a polygraph test. Suspect fails and then admits to the crime.

2. HELD (by a plurality): Statement was admissible because if the suspect reinitiates questioning, then it negates his assertion of his right to counsel.

3. As soon as reinitiation of questioning occurs, the police must get a waiver of Miranda rights again.

4.vi. Davis v. US (1994)

1. During interrogation, it was unclear whether the suspect was asking for a lawyer: he said “Maybe I should talk to a lawyer, I think I want a lawyer,” but then he says “No, I’m not asking for a lawyer”

2. HELD: Ambiguous assertions of the right to counsel may be followed by “clarifying” question by the police, e.g. the police may ask “does this mean you are asking for a lawyer,” or “Why do you want to talk to a lawyer?” This in practice moves the conversation away from suspect’s assertion of his rights to the question of his guilt.

vii. McNeal v. WI1. This case demonstrates the different scope of Miranda and 6th Am rights.2. 6th Am (Messiah)

a. the right to counsel is specific to the offense that the Δ has been charged with. E.g. if charged with homicide, he may be questioned w/o a lawyer re a burglary.

b. 6th Am rights last until the trial is over.3. Miranda

a. Once you assert your right to counsel, the police cannot question you about anything, regardless of what you are accused of.

b. Miranda rights end once you are released from custody.viii. Moran v. Irvineonly suspect himself may assert his rights

g. Public Safety exceptioni. New York v. Quarrels (1984)

1. police apprehend Quarrels after getting a description of a rapist, and he’s supposed to have a gun. Police see he has an empty holster and they ask where the gun is, and he said “the gun is over there,” and the officer retrieved the loaded pistol. At the time the police ask about the gun, suspect has been

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overpowered, there were no accomplices thought to be nearby, and the supermarket in which he was apprehended was empty (at 12.30 am).

2. HELD: This falls under the public safety exception to Miranda. Police may ask non-coercive questions without giving Miranda warnings when the questions are reasonably prompted by a concern for immediate public safety.

3. Note, if they ask a question, 1 part relates to public safety, and another part does not, the latter will be excluded.

4. Officers are considered part of the public, so if the police ask the suspect if he has any needles on him/guns in his house, that’s excepted.

5. Well confined exception6. Dissent: here the threat was not immediate, they could have roped off the area

and looked for ith. Workings of Miranda

i. If police misstate the Miranda warnings, there is no violation as long as the warnings reasonably convey the rights.

1. Duckworth police said “if and when you get to court” after right for atty—that’s okay

2. If police know Δ already has an attorney or is very wealthy, they don’t need to say “if you can’t afford an atty…”

ii. No need to inform the Δ of the nature of the charged offense. Miranda rights attach to any type of crime, but you don’t have a right to know what you are being questioned about.

i. Miranda Remedy:i. statements that are fruits of a Miranda violation are excluded, Missouri v. Seibert

(2004) ii. Physical, non-testimonial evidence is admitted, US v. Patane (2000)

j. Due Process—Voluntariness Test, Revisitedi. The voluntariness test applies through the Due Process Clause, independent from

Miranda, the custodial interrogation requirements and waivers. Look for its application when Miranda does not apply (either suspect not in custody or not interrogated) or when Miranda is followed, but the statement is nonetheless involuntary.

ii. DP Cl has the fruit of the poisonous tree remediesiii. SIG: Voluntary test is rarely applied, but has full remedies.iv. Miller v. Fenton (3d Cir 1986)

1. Miller is suspected of murder. He is questioned for an hour and then confesses. The police untruthfully told Miller that the victim was alive and could ID him, and acted like his friend and brother. At the end of his confession, Miller collapses from shock or a full panic attack. Police followed Miranda to the letter—used objectionable but allowed tactics.

2. HELD: Suspect’s statements are admissible b/c the police statements were not so manipulative as to deprive the suspect of the ability to chose whether to make his statements.

3. Dissent: Whether suspect has a choice is not the issue, but rather whether there was in fact coercion. Here, suspect collapsedthe coercion is clear.

v. US v. LeBrun (8th Cir 2002)1. Δ was a military vet in his mid-50s, employed as a manager in a real estate

office with a college education and 1 yr of law school. Agents lied to Lebrun

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about the evidence against him for a 30-yr old murder, told him that if he did not confess he would be subject to charges in a distant state, played on his concern’s about his health and pregnant wife and said that if he confessed to a “spontaneous” act, he could not be prosecuted (so it sounded like he wouldn’t be prosecuted). LeBrun confessed.

2. HELD: Lebrun’s confession was voluntary and thus admissible. Suspect was only questioned for 33 minutes, he was sophisticated (had legal training in the navy), and although he wasn’t given Miranda warnings, he wasn’t in custody.

3. Note: The S. Ct. in Bram v. US (1897) ruled that if the confession is extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, it would be inadmissible. Connolly has eroded this somewhat, so that now a promise only may be coercive, even if it is a direct promise of a lesser offense or conscious misleadingfact-specific.

vi. Arizona v. Fulminante (1991)1. Δ confessed to a fellow inmate who, unbeknownst to him, was cooperating

with the government to obtain evidence against him. The confession was obtained by playing on his fear of other inmates, and then promising him protection from them. Because there was no “interrogation”, Miranda was not an available avenue of challenge.

2. HELD: Inadmissible 3. Note: the informant was state actor so his conduct is governed by the DP Cl,

but not Miranda. vii. Frazier v. Cupp (1969)police lied to Δ, saying his accomplice had already

confessed, which caused Δ to confess. His confession was still admissible b/c this deception, under the totality of circumstances test, was not coercive.

viii. CO v. Connolly (1987)1. A mentally unstable man walks up to an officer on the street and confesses to

killing a young girl and wants to talk about it; he later confessed it an unsolved murder that had been committed months searlier. Psychiatric tests confirmed that Connolly was crazy (had auditory hallucinations in which voice of God told him to confess).

2. HELD: Admissible b/c police officers did not know he was unstable. 3. SIG: police conduct is key more than suspect’s free will4. Cf with Townsend v. Sain (1963)—admissions under truth serum were

considered involuntary, even though it didn’t appear from the record that the police knew Δ was under the drug’s influence at time of questioning. Mentally instability may have the same effect. The difference is this case was before police coercion was an added requirement under Connolly.

5. TEST:a. police subjected the suspect to coercive conduct; andb. conduct was sufficient to overcome the will of the suspect (given his

particular vulnerabilities and the conditions of the interrogation), thus inducing an involuntary statement

16. Grand Jury Investigations a. Generally

i. Exclusionary rule does not apply to GJsii. After search and seizure and interrogations, this is the government’s next

investigatory step

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iii. Most useful in document based cases (e.g. white-collar crimes) and cases with hostile witnesses (govt may compel them to speak)

iv. HistoryBefore there were policemen, grand jury did the job that police now do—groups of citizens would investigate a crime on their won, and if they found enough reason to charge someone, the GJ would issue an indictment. It would sift through the evidence to figure out who did the crime. It was a sword and a shield (investigated (sword), but person couldn’t be indicted unless GJ said so (shield)).

v. Today, grand jury members usually sit in a room with only the prosecutor and the witness (no judge or defense atty) and hear testimony. There is a legal fiction that the GJ is investigating; really it’s the prosecutor at this point.

vi. The government must keep grand jury proceedings secret, though the witnesses do not, so the GJ information is essentially secret.

vii. Purpose of Testimony: 1. collect evidence2. lock in a witness, so if they say something different at trial they can be

impeached on the stand. viii. Policy behind Grand Juries

1. Locks in testimony and gets people to testify who would rather not.2. Without the power to compel, the govt might not be able to establish probable

cause3. Power is very broad, but limited by secrecy4. Power rarely abused (notable exception: the Ken Starr, Whitewater, Jones,

Lewinsky mess). This is because grand jury process it time-consuming, so there’s little incentive to draw the process out by calling unnecessary witnesses

b. Compelling Testimony—Subpoenas i. Generally

1. judge does not issue a subpoena, it’s the prosecutor’s call entirely2. subpoenas are not self-enforcing, if the recipient does not respond, the

government must file a motion to compel, which leads to litigation over whether the subpoena was proper.

3. There is no probable cause, or “specific, articulable facts” requirement.4. If the recipient challenges a subpoena, the government must only show that

it’s relevant and not unduly burdensome. 5. Govt may issue a subpoena to determine that no crime has occurred. 6. 4th Am places almost no limits on govt’s subpoena power (now that Boyd has

been overruled), but the 5th Am provides the biggest check on the grand jury power.

ii. Subpoena duces tecum1. compel production of physical evidence. The recipient is to bring the

evidence to the grand jury iii. Subpoena testificandum

1. compel testimony. Recipient must swear to tell the truth about what he saw regarding the crime

iv. Boyd v. US (1886) (dead letter now)1. Government issued notice to Boyd that he had to produce an invoice about the

evidence the government had seized from him, to prove that he hadn’t paid customs duties on everything it had seized.

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2. HELD: Compelling a document is an illegal search. So subpoenas are governed under the 4th and 5th Amendments. There is no difference between unlawfully compelling someone to produce evidence and breaking into their house to get it.

3. Ct took a property-based approach—were trying to seize Boyd’s property with the subpoena

4. SIG: in this case, Ct said that govt can’t compel production of documents, but after Boyd there is increased regulation of business, now you can.

v. Hale v. Henkel (1906)—overrules Boyd1. Government wants corporate documents for an anti-trust investigation.2. HELD: Corporation has not 5th Am rights Ct rejects Boyd’s framework, and

sets up the 4th Am standard. Corporations are protected under the 4th am from unreasonable searches and seizures .

3. Reasonable is measured by the breadth of the subpoena, i.e. an overbroad subpoena is unreasonable.

a. 2 factors: i. (1) relevance of subpoena;

ii. (2) is compliance with the subpoena unduly burdensome?4. If a recipient of a subpoena believes it is overbroad, it may refuse to comply.

The court may narrow the subpoena at the judge’s discretion. vi. US v. Miller (1976)

1. Fourth Amendment rights to documents belong to the holder of the documents rather than the person who authored them. There is no reasonable expectation of privacy when you have disclosed a document to someone else (Cf Jimmy Hoffa case).

2. Apply the reasonableness standard of Hale v.Henkel to the document holder. vii. US v. Dionisio

1. GJ subpoenaed Δ to produce voice recordings2. HELD: This was not an unreasonable search or seizure—the 4th Am does

not restrict subpoenas testificandum. It is not a seizure to make a person attend JG hearing (more of an inconvenience than a detention) and not a search to make Δ talk.

3. Marshall, dissent: subpoena is a seizure b/c it’s akin to custodial interrogation.4. Policy—no incentive for prosecutor to abuse subpoena power

c. 5th Am Limits to Grand Jury Investigationsi. 5th Amprohibits compelling testimony that is incriminating.

ii. Three Elements of evidence that may not be compelled:1. TESTIMONIAL

a. reveals the content of your mind/thoughts. E.g. confessions are testimonial b/c they state your belief that you did the crime.

b. Not testimonial: blood samples (Schmerber), voice samples (Dionisio) 5th am protects the contents of your mind, not your body.

c. Action may be testimonial if it conveys what you are thinking.2. COMPELLED

a. Evidence is compelled if there is a legal punishment imposed as a matter of law for failure comply, e.g. in the GJ system you may be held in contempt

3. INCRIMINATING

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a. The subpoena is likely to call for something that would implicate a person in a crime. This is hard to determine before the question is answered, but if there is a real likelihood, then a privilege attaches and the person asserting the privilege need not answer, and risks no legal punishment for their failure to answer.

b. Note: gov’t can compel you to testify in a context that will not expose you to criminal liability, e.g. if they grant you immunity

c. TEST: Real and _____ Danger Testi. Possibility that truthful answer to question will force the

Declarant to give evidence of a crimed. Hoffman v. US

i. Judge looked to the context to determine whether the question was likely to elicit incriminating testimony.

ii. Revealing your name is not incriminating in most circumstances.

iii. Note: judge decides what may lead to an incriminating answer, and if you still don’t answer, you may be held in contempt.

iii. Rules for calling target to testify in front of a GJ:1. Witness (or target) called to testify in front of the GJ2. The witness need not be read their Miranda warnings, or warned that they are

the suspect.3. The target’s attorney must wait outside the GJ chamber.4. Once target starts to testify to a certain issue, they waive their rights as to the

details.iv. Rules for corporations/entities

1. Corps and Entities have no 5th Am rights.2. Policy rationale for this exception—the regulatory system is like a cost of

doing business v. Rules for Persons

1. Person must answer the subpoena. They may assert any privilege at the GJ hearing.

vi. Act of Production Doctrine—Rules for Documents1. US v. Fisher

a. In a tax fraud case, the accountant prepared tax documents for taxpayer, and taxpayer gives those documents to the attorney. Government issues a subpoena duces tecum to attorney, who claims attorney-client privilege and 5th am.

b. Held: There is no atty-client privilege, but production violates 5th Am. You are not testifying to the content, but rather to: your POSSESSION of the documents; the documents’ EXISTENCE; and their AUTHENTICITY.

c. There would be no 5th Am protection if they were in the hands of the taxpayer b/c the govt knew he’d had them and their existence and authenticity were not the point of the caseaccountant could testify to all this, so it was a foregone conclusion.

2. Hubble v. USa. As part of the Whitewater investigation, Hubble (the #3 DOJ lawyer

during Clinton admi) entered a plea agreement that he will give full and accurate information regarding the investigation. But the

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government didn’t think that Hubble was cooperating totally, so they subpoenaed him to bring many documents (financial docs, etc—vy broad). Hubble had agreed to give all his billing and tax records, etc to the investigators, and this was to prove that he had failed to fully comply. Hubble asserts 5th Am right against production.

b. Held: Hubble has a right against production b/c it would incriminate him if it showed that he had failed to comply with the terms of his plea agreement.

c. Distinct from Fisher b/c govt didn’t know if the compelled documents existed.

d. SIG: there is a fact-sensitive inquiry to determine if this information will help make the gov’t case (as in Hubble) or if the possession, existence and authenticity of the compelled documents are at issue (as with taxpayer in Fisher)

3. US v. Boucher (NH)a. Δ had child porn on his computer. He had already shown the police

where the porn was on his computer, but then the found the child porn. Then they close the computer, and need the password to get back into the hard drive.

b. Ct must determine whether the password is a foregone conclusion. 17. Gideon and the 6th Am Right to Counsel

a. Generallyi. Right to an appointed atty starts when someone is formally charged, which is at the

indictment.1. (Cf with Miranda right to counsel during interrogation—the 2 are separate)

ii. Right is offense specific (Cobb).iii. Right is hard to waive, does not require showing of coercion to invalidate waiver.

b. Scope and Meaning of the Right to Counseli. History and Evolution of the 6th Am

1. Historically, there was no right to counsel, and when the right was created, it meant the right to hire counsel

2. Powell v. Alabama (1932)—a. Scottsborough boys were convicted (on probably trumped up charges)

of a capital offense (rape) w/o an atty. b. Held: A corollary of the right to an atty is that the state will provide

one for certain, really important cases. Ct will deermine when the State should have provided one on a case-by-case basis.

3. Betts v. Bradya. didn’t incorporate the 6th Am to the states, relying on the States being

able to provide unfair trials, as long as Δ has right to hire his own atty. 4. Mapp v. Ohio

a. Incorporation of DP requirements against the states. End case by case (Gideon does the same thing for the 6th Am)

ii. Gideon v. Wainwright1. Gideon was charged with an intent to commit a misdemeanor, which is a

felony in Fla. He couldn’t afford an attorney, so he asked for one to be appointed according to the 6th Am, Ct said he had no right to one. He represented himself and was convicted.

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2. HELD: Right to an attorney at trial is a fundamental right, the 6th Am is incorporated against the States

3. The right to counsel is fundamental b/c the atty can explain/negotiate plea agreements, can argue any suppression arguments (now), can research b/c aren’t in jail, can make hypotheticals without incriminating Δ, is a master of FRE and is more convincing in openings/closings just by nature of not being the accused.

iii. Ardersinger v. Hamlin1. Under state law, you may have counsel appointed if you will be in jail for

more than 6 months (parallels the 6 month rule for jury trials)2. S.Ct. reverses: Right to have counsel appointed for any case which might

result in jail time iv. Scott v. Ill—

1. if you may be sentenced to jail time, but prosecution is only going for probation, you have no right to an appointed counsel.

2. Note: a. no right to appointed atty, even if the govt will impose a huge fine on

you.b. Always have a right to hire an atty.

v. When 6th Am rights attach:1. Rothgury

a. Rothgury was arrested for being a felon in possession of a fire arm. There is a probable cause hearing. Then he waives his right to an atty so he could be charged and released on bail

b. Held: No 6th Am rights at a probable cause hearing. But we don’t know how the waiver will be resolved (hasn’t come down yet)

vi. When your atty must be present:1. Massiah v. US (1964)

a. Drug prosecution where Δ’s incriminating statements to his co-Δ were admitted into evidence at trial. After Δ was charged, and released on bail, police wire his car. Δ talks to an undercover agent.

b. Held: Messiah had a right to have his atty present for interrogation. Once adversarial proceedings had begun, govt attempts to deliberately elicit statements from him in the absence of his atty (done openly or surreptitiously) violate the 6th Am

c. SIG: You have a right to an atty at every critical stage of prosecution (e.g. motions hearings, but not being moved to a different cell w/in a jail)

d. TEST: i. govt must deliberately elicit incriminating statements or waiver

1. like Innis, but there the test is whether the police could reasonably foresee the statement, here it’s a bit narrower.

ii. judicial proceedings must have begun2. Miranda (1966)

a. argued under the 6th, decided under the 5th, w/o citing Messiah—thought Messiah was dead letter

3. Brewer v. Williams (1977)

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a. case with escaped mental patient living in a YMCA in Des Moines, Iowa murders a young girl. Arraigned in Davenport, but before being transported Des Moines, he talks to lawyer on the phone who says, don’t make any statements and gets officers to agree. During the 160 mi. drive, the officers, who knew Williams was a formal mental patient and deeply religious, suggests that he should tell them where the body is so the girls parents can give her a Christian burial. (this was Nicks v. Williams when it went up later on a 4th Am inevitable discovery suppression issue)

b. HELD: Police violated 6th Am right to counsel b/c he had not waived his right—sig: it is much harder to waive your 6th right to counsel than your Miranda right to counsel.

c. Policy—draw a line after Δ is charged, we want govt to have all its elements proven before they charge people. That’s also why once you’ve been charged, the government can’t go back to the grand jury to charge you will more (related) crimes.

vii. Offense-specific1. TX v. Cobb (2001)

a. Charged with burglary, then in later interrogation without Δ’s atty, about the murder of the homeowner and her daughter.

b. Held: this violated Δ’s 6th Am right to counsel in burglary case, but not in the murder case, because the 6th Am is offense-specific.

c. Policy: if 6th Am right was universal (like Miranda) then govt would be unable to talk alone with Δ for a serious crime once the Δ had been charged with a minor (but w/ jail time) crime. So the Ct made the right very strong, but narrow.

d. RULE for determining whether 6th Am right in once offense applies to another charged offense:

i. Are the elements of the crimes the same?e. In this case, the burglary and murder revolved around the same event,

but they are very different crimes, so the information given about the burglary is suppressed, but the information about the murder is admissible.

2. Blockburger Test:a. possession and possession with intent to distribute are the same crime,

because the elements of one are subsumed in the other. viii. End of Right to Counsel

1. Ross v. Moffitt2. McCain v. Dursten (1894)

a. no right to attorney for appeal. But there was no right to appeal criminal convictions until 1891.

3. Douglas v. CAa. You have a full right to counsel if appeal is allowed. But you do not

have a right to counsel on discretionary appeals (e.g. to apply to state S.Ct. for cert)

b. Note: atty can file an Anders brief, saying that there are no appealable issues on initial appeal

4. Faretta

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a. F wants to waive his 6th Am right to counsel and represent himself. F must tell the Ct he understands all the things he is giving up. Even then, Ct may appoint standby counsel.

b. SIG: standard of waiver of 6th Am rights is stringent.c. Ineffective Assistance of Counsel

i. Powell v. Alabama1. right to counselright to effective assistance of counsel.2. In this case, Δ only got an atty on the day of the trial, he had not time to

prepare so couldn’t really help the Δ. 3. S. Ct. said the assistance must be meaningful, but not defined.

ii. Stickland v. Washington (1984)1. Δ has been convicted, petitioning for habeas b/c he says he’s being unlawfully

held b/c he was convicted w/o effective assistance. Here Washington committed 3 murders. The evidence against him was provided by his plea and conviction. There is a separate trial for sentencing in death penalty cases, where the jury weights the aggravating and mitigating circumstances—jury can’t sentence Δ to death unless aggravating outweigh mitigating. The counsel failed to admit evidence of Δ’s psychiatric problems, waived a jury sentencing, brought in no character witnesses, all because he says he was trying to play to judge’s respect for people who take responsibility for their crimes.

2. TEST: two parts to ineffective assistance of counsel:a. Deficient performance; AND

i. burden onf Δ to show atty’s acts or omissionsii. Ast whether, in light of all the circumstances, the acts or

omissions were outside the wide range of professionally competent assistance. There is a strong presumption that the atty was competent.

b. Prejudice to outcomei. Must show that, but for counsel’s errors, there is a reasonable

probability that the result would be different. 3. Ct says that in this case, the atty was following a strategy, so no deficient

performance, and no need to inquire to whether there’s prejudice (dicta: can show prejudice is jury deliberates for a long time)

iii. SIG: if Ct thinks you are guilty, they won’t find prejudice, but if they think you are innocent with a bad lawyer, they may

iv. Application of Strickland—Death Penalty v. Jail Time Cases1. In Death Penalty Cases, there are 2 trials (1 for sentencing) so Ct can look

separately at sentencing.2. But it is hard to prove ineffective assistance on the length of jail term b/c it is

hard to show prejudicev. Wiggins v. Smith

1. attorney in jail time conviction didn’t research into Δ’s past. After sentencing, Δ gets a new atty and discovers a lot of evidence about Δ’s rough life that were never presented to the jury and would have decreased his sentence.

2. No IAC found3. SIG: death is different

d. Line-Ups, Show-Ups, and Photo Arraysi. Generally

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1. reason for a line-up/show-up/photo-array is to give evidence to police to know identity of criminal; to get the ID before your witness’s memory fades; to remind witness of what the Δ looks like before trial.

2. The 6th Am and the DP Cl combine to govern: when a Δ has a right to his atty’s presence, and what testimony from an out-of-court ID is admissible

ii. US v. Wade (1967)1. Δ robbed a bank with tape on his face. A year and a half later he’s indicted, a

month later arrested. Witnesses both IDed the Δ before the line-up—they were waiting for the line-up and saw him through the door. Then at trial, the ID Δ and talk about the out of Ct ID.

2. HELD: There is no 5th Am issue b/c your appearance is not testimonial; but this violates the 6th Am right to confrontation, and Δ needs to have his lawyer present to bring up any problems with the line up at court

3. Atty really just observes the line-up, the police determine his role. Atty may only observe to see if, e.g. officers are influencing witness to make them ID the right person.

4. Remedy: If there is a line-up w/o counsel, no testimony of it may be introduced at trial. If the government can prove by clear and convincing evidence that the in Court ID is not tainted by the out of ct id, then they can have the witness ID the Δ in court.

a. Witness must say that they are basing their ID on the crime, not on the line-up—not super effective

iii. Kirby v. Ill (1972)1. Kirby was arrested for robbery, and before he was formally charged the

witness identifies him from a line-up w/o K’s atty present. 2. Held: No right to have your atty present at a line-up prior to being charged. 3. Policy:

a. govt does a post-indictment line-up to get its evidence in order, but pre-indictment just trying to see if they even have enough evidence against the suspect. It is better for them to double-check that they have the right guy before indicting him—less likely to be manipulated.

b. This policy rationale is ridiculous and wrong.4. Brennan, Dissent: Wade was not about protocol, it was about rights, and they

are just as likely to be abridged before as after the indictment. iv. US v. Ash (1973)

1. 3 years after the crime (in trial prep) the witness is shown a photo array.2. Held: does not violate the 6th Am for witness to ID Δ using photo arrays,

without the Δ atty present. This is like any other interview of a witness, and showing photos is nothing like a trial.

3. Note: This does not protect against the government trying to bias the witness or showing the witness a suggestive photo array, but you don’t want to require the Δ atty to be present with every gov’t interview with witnesses b/c it would undermine the adversarial process.

v. Due Process Limitations1. if the line-up is extremely biased, it could violate the DP Cl, but this only

applies to egregious violations. vi. Stovall v. Denno (1967)

1. Handcuffed suspect—a black man—was brought into stabbing victim’s hospital room and asked if he was “the man.” Ct says that one-on-one

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confrontations are not idea, but this wasn’t unnecessarily suggestive in light of the uncertainty over whether the victim would survive.

2. Under the totality of the circumstances approach, a ct must determine whether a challenged procedure was:

a. unnecessarily suggestive; andb. likely to lead to a mistaken identification**

3. If so the evidence is inadmissible at trial.4.

vii. Manson v. Brathwaite (1977)1. Leaving 1 photo for the policeman who was to ID the Δ was not overly

suggestive (maybe).2. Due Process standard: totality of the circumstances, the overall question is

reliability of the witness (affirm Neil v. Biggers)3. Witness Reliability Factors:

a. opportunity to view suspectb. degree of attention paid to suspectc. accuracy of the descriptiond. witness’s level of certaintye. time between viewing and the identification

viii. Policy1. double blind IDs are best!

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