Crim Attack Outline
If there is no prior law/precedent on a particular fact pattern, do the balancing test.
1. Government/law enforcement/administrability by law enforcement/crime prevention interest
2. Degree of intrusion/privacy interest
1. Is it a search?
a. Katz:
i.
ii.
Subjective: Defendant had actual, manifested, subjective expectation of privacy
1. Did D take normal precautions? In Katz’s case, he shut the door.
Objective: Society recognizes the expectation of privacy as reasonable
1. Balancing Test - Totality of Circumstances
2. Did he knowingly expose?
a. Plain view
b. Common use
c. Third party
b. Jones:
i.
Physical intrusion
1. Did the owner consent (explicitly or impliedly by custom)?
2. Controversial: Kyllo v. US and sense-enhancing technology.
a. Technological intrusion
i.
Kagan: sense-enhancing technology can include dogs
ii.
Into a constitutionally enumerated area
1. Persons, homes (curtilage), papers, effects
2. Curtilage - Florida v. Jardines
iii.
With intent/purpose to obtain information
2. Did you knowingly volunteer the information to a third party? (Third-Party Doctrine)
a. Yes → No Reasonable Expectation of Privacy (REP)
i.
US v. Miller: Bank records (cannot assert ownership of business records)
ii.
Smith v. MD: Pen register (limited capabilities, no privacy in what they dial)
iii.
White: If suspect isn’t protected when accomplice becomes informer, it shouldn’t protect
him when that agent makes recordings, either
iv.
Hoffa: 4A doesn’t protect people talking to someone with a wire even if they trust the
informer
b. No → Reasonable Expectation of Privacy
i.
Jones: People have REP in their physical movements (nightclub owner and car).
ii.
Carpenter:
1. Cell phone locations is a search (cellphones are necessities)
2. Anything more than 7 days is long-term tracking, violates REP.
3. Anti-shrink principle: shift in technological capabilities doesn’t shift boundaries of
private spheres
c. Anti-Third Party Doctrine (Carpenter) → Fulfill 3 elements = did not knowingly volunteer.
i.
New technology, change from old technological intrusions
ii.
iii.
1. Eg. heat-sensing technology from Kyllo vs helicopter in Riley.
Degree of intrusion
1. Eg. cell phone locations in Carpenter vs pen register in Smith.
Involuntary
1. Eg. everyone owns cellphones and cellphones are on/following you all the time in
Carpenter vs you have to deliberately dial to reveal info in Smith.
3. Does Defendant have standing to object to the search? (Were their 4A rights violated? Yes = can object)
a. TEST - MN v. Carter: Two sources of privacy (Irv loves this case)
i.
Property interest
ii.
Long-standing social understanding/customs between D and owner, which depends on
your purpose as a visitor and ties to the house
1. Commercial purposes (is not enough)
2. Short-term visit (is not enough)
3. Prior commitment/connection to the house/owner
b. Rakas: Being on premises alone is not enough to object to search.
i.
SCOTUS goes back to Katz: Reasonable expectation of privacy = POSSESSORY interest
1. If you want to assert 4A rights, you have to admit that the thing being searched is
YOURS. Most defendants don’t want to do this!
c. MN v. Olson: Overnight guests are afforded unique privileges.
i.
Societal norms → Because hosts generally respect the privacy of their guests, so they
have an expectation of privacy.
d. Byrd: In car, drivers and sole occupants (despite not legally in control of car) have a reasonable
expectation of privacy in that space.
i.
Passenger rights are ambiguous.
4. Is the search reasonable?*
a. Yes
i.
Warrant made pursuant to PC.
1. Search Warrant requirements:
a. PC that evidence of crime is at location (magistrate determined)
ii.
No warrant, yes PC, and Exigent Circumstances (EC)
b. No
i.
No warrant, no EC.
5. Is there Probable Cause? You only need this for searches and seizures. If it’s not either of those, you don’t
need probable cause.
a. Aguilar Test on informants (NO LONGER GOOD LAW)
1. Credibility/honesty of informant (track record)
2. Basis of knowledge (gold standard is personal observation)
b. Spinelli (Aguilar Test)
i.
The tip has to be just as strong and credible on the basis of knowledge ALONE as it is
under Aguilar itself
1. Draper info was better than Spinelli because of high level of detail AND
predictive nature of the info was corroborated
c. Illinois v. Gates (THIS IS CURRENTLY GOOD LAW)
i.
“Totality of the circumstances” approach
1. On its own, the tip isn’t enough, but its quality can vary
ii.
Factors to take into account
1. Credibility
a. Is the informant known or anonymous? Known informant more credible
bc accountable to perjury
b. Does informant have track record of reliable info?
c. Is informant making statement against his own penal interest?
2. Basis of Knowledge
a. Reporting personal knowledge (hearsay, rumor, or actual witness?)
b. Are there many details to be confirmed?
c. Are many details confirmed? Or are there major mistakes?
d. Is it predictive info that isn’t public knowledge?
e. Is detail of conduct unusual or suggestive of criminality?
d. Pringle - what happens when someone has committed a crime, but we don’t know whom?
i.
Alternative formulation of probable cause standard: reasonable grounds for belief in guilt
is required and must be particularized to the person being seized
6. Is it a seizure? (Royer)
a. Test for Seizure. (Arrest is a seizure of the person! - which means you need warrant with PC)
i.
a show of authority that would cause a reasonable person to not feel free to leave or
terminate the exchange and
ii.
by means intentionally applied and
iii.
the suspect submits.
7. Does warrantless arrest violate the 4A?
Watson Test
For a warrantless arrest, you need:
(1) Probable cause
(a) Prolonged detention has higher requirement for PC (Gernstein)
(b) 48 hours within arrest should comply with Gernstein (Riverside)
(i)
Riverside doesn’t have to retroactively apply where there was a four-day delay in
granting a probable cause determination (Powell)
(2) To believe the suspect committed a felony not in officer’s presence
(3) Arrest must occur in public (or curtilage) (one foot in and one out = public)
(4) Or crime was committed in front of the officer
a. A warrant backed by probable cause is sufficient (BUT NOT NECESSARY) for an arrest.
i.
Arrest in Watson did not implicate 4A because the informant’s tip was strong enough to
amount to probable cause:
1. The informant made a statement against their own penal interest
2. They had firsthand, eyewitness information
3. They were not anonymous - they put themselves on the line
8. Was it an arrest in public?
a. Did officer have PC that suspect committed felony (in or out of officer’s presence)? Watson
i.
Yes → legal
ii.
No → illegal
b. Did officer see a misdemeanor committed in his presence? Atwater
i.
Yes → legal
ii.
No → illegal
c. Was it a misdemeanor outside officer’s presence? (new exception)
i.
Do the balancing test
d. Did officer have ulterior motives?
i.
Doesn’t matter as long as their behavior is objectively justifiable under 4A (Whren)
1. Where truck was stopped for traffic violation, but later found drugs.
ii.
No need to balance where you already have probable cause
9. Was it a private arrest at home?
a. Even though weapons and contraband found in a public place can be seized without a warrant,
cops need an arrest warrant to conduct an arrest in one’s home (Payton)
i.
Requirements for arrest warrant at home:
1. PC that suspect committed crime
a. If this is a third party’s home, you need PC that D is in 3P’s home
2. Arrest warrant
3. Reason to believe that the suspect is at home
ii.
If a person has REP that is someone else’s house, Payton governs his rights. If the person
has no REP in other person’s house, Watson and Atwater govern his rights.
Exceptions to Warrantless Intrusions
10. Was there a search incident to arrest?
a. A valid arrest is enough to do limited search (Robinson)
i.
Right to search the person and areas within their control (Robinson) is automatic incident
to valid custodial arrest but must have two purposes
1. To disarm for safety
2. To preserve evidence
ii.
Searching the house (line = entry to the home, not porch) (Chimel/Rabinowitz)
1. Can only search person and area in D’s immediate control.
2. Cops have automatic right to make “protective sweep” (Buie)
a. Can be conducted without warrant OR probable cause
3. To search BEYOND sweep area, there must be reasonable suspicion that someone
who could pose a threat is lurking
a. Only looking in closets and protective spaces where PERSONS may hide.
Not searching for weapons or in places that couldn’t contain a person
b. Search may last no longer than necessary to dispel reasonable suspicion
b. Exceptions to search incident to arrest
i.
Police may not disrobe D under Robinson, but can ask to disrobe at station.
1. If the search is impractical or unreasonable, cops can still do it at the station. But
if not strip search, could be safer, more efficient, and more reliable to conduct in
field (Illinois v. Lafayette)
ii.
Intrusion into the body requires a search warrant
1. Alcohol breath tests doesn't constitute intrusion to body (Schmerber) because
this constitutes “prevention the destruction of evidence”
2. Nonconsensual blood testing must be done at medical facility (McNeely)
iii.
Phones require search warrant (Riley v. California)
1. Risk of invasion of privacy outweighs risk to officer safety/destruction of evidence
11. Four exigent circumstances allow for warrantless intrusion/search. (They often compound each other.)
a. Hot pursuit (requires a chase of the person that has PC of committing a crime - Santana)
b. Risk of flight by suspect
c. Safety of officers or others
i.
Emergency Aid Doctrine (Brigham)
1. Only need reason to believe that someone is in need of aid
ii.
Mere presence of another person in the house does NOT create imminent danger (Olson)
d. To protect against destruction of evidence
i.
Kentucky v. King: Cops CANNOT create an exigent circumstance through an actual or
threatened 4A violation, but they CAN knock and announce their presence
ii.
Mitchell: Blood draws cannot be justified under search incident to arrest, but can be
justified under exigency because of risk of evidence destruction. If you can get the
warrant before blood is drawn, PO must seek warrant.
1. Cops do not need warrant when:
a. Person is unconscious
b. Person is conscious but police have pressing duties that prevent them
from obtaining a warrant (i.e. safety of suspect)
*Is probable cause required?
● To search, cops need one of the above, plus PC of a crime or search warrant
○ Exigencies don’t eliminate PC requirement
12. Car searches?
a. 3 ways to search cars
i.
General car exception (Carney, Caroll)
ii.
Search incident to arrest (Gant 1, 2)
iii.
Terry stops (Long)
General Car Exception
b. Police may conduct a search of all areas of a car if they believe it contains evidence of a crime
(Carney) → bc 1) it is mobile, 2) there is less REP in car
i.
Ready mobility of the car is enough to trigger the exception
ii.
Police can also seize the car first, immobilize it, and search later at station without
warrant
iii.
Key considerations: mobility of the car and REP for objects in car
1. Factors: objective appearances, licensed, location, access to public road, if on
blocks, connected to utilities, etc.
c. Closed containers outside of cars (i.e. moving luggage) cannot be searched (Chadwick)
i.
BUT it may be seized with probable cause/exigent circumstance
1. Seizure can last no longer than is necessary to obtain a warrant
ii.
Can only be searched with a warrant
d. Searches of closed containers in cars (Ross, Acevedo, Houghton)
i.
If cops have PC, they can search any container in the car big enough to contain the object
of the search. They may do so without a warrant. They just need probable cause that
evidence of the crime is in the car
1. Houghton: doesn’t matter who it belongs to (can search passenger purse when it
is in car)
2. Ross, Acevedo: If the probable cause extends only to one container or to the
trunk, cops can only search those things. Scope of search must match scope of PC
Search Incident To Arrest → To search cars
e. Gant searches
i.
Gant I: If a suspect is unsecured (not under full control of officers at scene) and within
reaching distance of the car, cops can search the passenger compartment of the car.
ii.
Gant II: Cops can ALWAYS search for evidence of the crime of arrest if that crime gives
cops reasonable suspicion that evidence of it is in the car. (i.e. drug dealing, drunk driving)
1. Open question re: whether or not this applies to the entire car. *** CAN THEY
SEARCH THE TRUNK? ASK IRV
More Warrantless Exceptions
13. Stop and Frisks? (Terry v. Ohio)
a. Terry Stop (seizure): Police can conduct investive stop when there is reasonable suspicion that a
crime is occurring or is about to occur
i.
Use of physical force or show of authority. (California v. Hodari)
ii.
Hensley: can stop for past crimes
b. Terry Frisk (search): Police can frisk a suspect who has been legitimately stopped when there is
reasonable suspicion that they are armed and dangerous.
i.
Only allowed to check outer clothing and pat down for weapons, if they feel like there are
weapons, then can reach into pocket.
c. Must have reasonable suspicion → reason that it may be the case.
i.
ii.
iii.
d. Cars:
i.
ii.
iii.
Anonymous tip doesn’t justify stop and frisk unless there is additional corroboration for
sufficient indicia of reliability to create reasonable suspicion justifying a stop. (Florida v.
JL)
1. Must have predictive information (Alabama v. White)
2. For schools and airports, standard for tips is lower.
3. Naverette v. California → Tip that called 911 is enough because a) eyewitness b)
911 calls are recorded, c) permits police to identify key evidence.
Searches and seizures based on mistakes of fact can be reasonable (Hein v. NC)
Presence in a crime ridden area is not enough, but the flight of a suspect in a high crime
area can amount to reasonable suspicion and justify a lawful stop and frisk (Illinois v.
Wardlow)
Can search vehicle to self-protect in a Terry investigation because police is vulnerable in
situations where suspect isn’t under custodial arrest. (Michigan v. Long)
If police is only asking suspect to step out of car, no need to show suspicion that suspect
is armed. (Penn v. Mimms)
If police ask suspect to request for ID and this request is reasonably related to
circumstances justifying the stop, then no 4A violation when there is an arrest for failure
to provide ID. (Hiibel v. Sixth Judicial District)
14. What are the limitations on scope and duration of stop and frisk?
a. Florida v. Royer: 1) Scope must be least intrusive means reasonably available. 2) Duration must be
no longer than necessarily reasonable time to dispel reasonable suspicion.
i.
Reasonable suspicion is insufficient to justify custodial interrogation.
ii.
Must not be detained and suspect must feel free to leave.
iii.
Illinois v. Caballes: If stop for traffic violation, the search/investigation must stop when
the reasonable duration for a traffic stop ends.
iv.
US v. Sharpe: cannot detain for so long, police must diligently pursue investigation.
v.
Rodriguez v. US: cannot extend time beyond what is needed for traffic stop in order to
effectuate drug sniff (7-8 minutes waiting for backup and drug dog to arrive)
15. Is the police encounter for stop and frisk consensual?
a. Reasonable person test is objective and presupposes an innocent person (Drayton).
i.
Bredline seizure occurs when a reasonable person believes he isn’t free to leave (US v
Mendenhall)
ii.
OR that he was not free to decline the police’s requests and terminate the encounter.
(Bostick)
b. Factors: (Drayton)
i.
Use of weapons
ii.
Whether police told suspect he is free to leave
iii.
Tone of voice used.
iv.
Arranging encounter in an isolated setting
v.
Advising right of refusal to consent (not necessary but adds)
c. Cars: (Brendlin v. California)
i.
ii.
iii.
Average reasonable person would think that neither drivers nor passengers would believe
that they can walk away from a traffic stop.
Maryland v. Wilson: during lawful traffic stop, the police can order a passenger out of the
car.
Arizona v. Johnson: Even though police can order passenger out of car, cannot pat down
driver unless there is reasonable suspicion that the person is armed and dangerous.
16. Race and Ethnicity in Investigations
a. Brignoni-Ponce: The fact that someone is of Mexican origin or looks like it and is near the USMexico border isn’t enough to justify a stop at the border, because there are so many such people
near the border
i.
BUT this is enough to be a FACTOR in the reasonable suspicion inquiry
ii.
Other factors that can be relevant in the reasonable suspicion inquiry
1. Characteristics of the area (proximity to border, traffic patterns, extent to which
it’s been used in the past)
2. Driver’s behavior – erratic or evasive?
3. Characteristics of the vehicle
b. Race and ethnicity in consensual encounters
i.
These aren’t searches or seizures - no 4A issue
ii.
Oneonta: Race can be a factor when deciding who to approach. Identifying information is
valid and different from racial profiling
1. BUT race is not sufficient on its own.
2. Farag: Arab ethnicity can’t be a relevant factor in determining probable cause or
whether they’re engaged in surveillance for terrorists
17. Special Needs Doctrine and Interest-Balancing Exception
a. Three necessary components
i.
Must be for the purpose of investigating the crime at hand
ii.
There must be a mechanism for curving officer discretion – not just “standards”
iii.
Govt. interest must outweigh intrusion
b. Sometimes, reasonable suspicion is required
i.
Provides an adequate check on officer discretion
c. But individualized suspicion is not required
d. Edmond: drug interdiction highway checkpoints don’t fit within the special needs exceptions
i.
Their interest is indistinguishable from general interest in crime control
1. Interests in highway safety or securing the border are distinct from that
ii.
Highway stops must have a procedure – every tenth car, or something like that
1. Selection of which cars to stop cannot be left to officer’s unfettered discretion
iii.
Highway safety checkpoints and border searches can be justified because degree of
intrusion is minimal
1. And strong govt. interest is upheld because of these brief stops being the best
way to defend those interests
2. Martinez-Fuerte: catching illegal aliens is justified (not general crime control)
3. Siz: Sobriety checks is okay bc it is for the interest of immediate threat to life and
limb (not general crime control) - also they check everyone, min intrusion.
4. Prouse: drivers ID check is not okay because there is too much left to police
discretion and no standard.
iv.
BUT if govt. wants to conduct a more intrusive screening based on what it learns in these
stops, it needs individualized suspicion
e. Bucca swabs are routine and come with booking. Similar to a special needs search. Works when
it’s tailored only to violent crimes.
f. Earls: Drug testing students is valid (students are subject to physical tests anyways)
18. Inventory Searches Exception
a. Primary purpose to: (An interest balancing test - gov interest must outweigh intrusion)
i.
Safeguard property of owners
ii.
Ensure against false claims
iii.
Protect police from harm
b. Requirements for inventory searches: (Colorado v. Bertine)
i.
Good faith (cannot be pretext for criminal investigation)
ii.
Standardized criteria (has to act consistently)
iii.
Feasibility
c. Cases:
i.
South Dakota v. Opperman: Search of abandoned car’s glove apartment is okay becase 1)
to protect owner’s property when in custody of police, 2) to insure against false claims of
lost or vandalized property and 3) to guard police from car.
1. Therefore strong gov interest and diminished REP in car.
ii.
Illinois v. Lafayette: inventory search of bag before defendant went into custody in order
to search for dangerous weapons.
iii.
Florida v. Wells: Cannot inventory search locked suitcases because intrusion is more
severe.
19. Consent Exception
a. Whether the consent was voluntary:
i.
Objective test (government’s coercive practices)
ii.
Subjective test (the vulnerability of the person being questioned)
b. Bustamante: Consent is reasonable under 4A when it is VOLUNTARY and NOT COERCED
i.
Did the government engage in any explicit or implicit coercive measures?
ii.
How do those measures play on the subjective state of the person who gives consent?
1. Knowledge of right to refuse is relevant, but a person can validly consent even if
they didn’t know they had the right to withhold it
iii.
This depends on circumstance. We take into account who the suspect is!
1. Some things might be sufficient for someone of average intelligence, but not
someone else
iv.
Court seriously weighs government interest, because this might be the only way for govt.
to obtain evidence.
c. Scope of consent: Florida v. Jimeno
i.
If D consents to car search, probably also consents to unlocked container searches but not
search of locked containers.
d. Georgia v. Randolph: can’t enter one resident’s home without warrant when co-resident is
objecting
i.
If co-resident was asleep or outside the house, then co-resident can give consent to enter
1. Fernandez and Matlock: police can obtain effective consent from remaining coresident. Objection only counts if police unlawfully remove the first co-resident.
2. Rodriguez: police can get consent to search even if mistakenly given (guy was
sleeping in room and cotenant consents on behalf)
20. Plain View Exception
a. Police must arrive at the place in view in compliance with 4A
i.
Either in a public place where they always have a right to be,
ii.
They have a warrant that gives that right to them, OR
iii.
They have an exception to that warrant that gives them a right to be where they are
b. Police have to know that the thing in view is evidence of a crime WITHOUT undertaking any
additional search
i.
Arizona v. Hicks: They can’t lift up or move things. They need probable cause without
that.
c. Police have to obtain ACCESS to the object in compliance with 4A - same as first requirement, but
for access in addition to view
Exclusionary Rule
21. Should the evidence be excluded?
a. Mapp v. Ohio: evidence obtained as the fruit of the poisonous tree is inadmissible in all courts.
i.
Purpose: to deter and compel respect for the constitutional guaranty in the only
effectively available way.
ii.
Wong Sun: This applies to all direct (evidence) and indirect evidence (statements)
1. If physical evid - direct. If uses evidence to get warrant, or uses statement to get
further warrant or further evidence then indirect.
22. Exceptions to the exclusionary rule!
a. Good Faith Exception (applies often when police rely on others’ judgments)
i.
U.S. v. Leon: Categorical rules for when costs to government in losing evidence outweigh
the value of privacy protections
1. Good faith exemption - Objectively (NOT subjectively) reasonable reliance on a
warrant
a. Only needed when there’s not probable cause
b. Massachusetts v. Sheppard: cannot ask the police to distrust a judge’s
words, so if judge makes administrative error, GF exception applies.
c. Invalidated statute (Krull) - GF exception applies because reasonably
relying on statues is not bad behavior, excluding it doesn’t deter bad
behavior.
2. Four cases where reliance on a warrant is NOT reasonable
a. It contains knowingly false or reckless information (Franks v. Delaware)
b. When the magistrate abandons their role – are they not neutral or
detached?
c. When the warrant facially lacks the information necessary – does it fail to
describe the place to be searched?
d. When there’s obviously no probable cause: “When the warrant is so
lacking in indicia of probable cause” that belief in it would be
unreasonable
ii.
Herring v. US: Good faith exception applies to reliance on database and mere negligence.
1. To trigger the exclusionary rule, the police conduct must be sufficient deliberate
that exclusion can meaningfullly deter it.
2. Franks v. Delaware: negligence in obtaining warrant isn’t 4A violation.
3. IF IT RISES BEYOND MERE NEGLIGENCE - GOOD FAITH DOESN’T APPLY.
a. Deliberate conduct
b. Grossly negligent
c. Systemic or recurring negligence
d. Recklessness
b. Factual Attenuation Exception (is evidence no longer tainted?)
i.
Wong Sun: If the police obtained the evidence from a method sufficiently distinguishable
to be purged from the primary taint (eg. a statement made as an INDEPENDENT AND
VOLUNTARY ACT OF FREE WILL), then initial violation can be voided.
1. Eg. when there is a temporal break, as when Wong was illegally arrested, but
released and later came back to the station to incriminate himself. Then no taint.
ii.
Brown v. Illinois: Reading suspect Miranda rights isn’t sufficient to show an act of free will.
iii.
Taylor v. Alabama FACTORS TO PURGE TAINT:
1. Temporal proximity (between violation and confession)
2. Intervening circumstances (was there time for calm reflection)
3. Purposeful/flagrant misconduct (was 4A violation negligence or clear violation,
and whether there was legitimate investigation afterward on police part and not
a fishing expedition?)
a. Eg. illegal breaking into house and searching without warrant (Brown) vs.
illegal stop outside that leads to arrest upon finding outstanding warrant
and search incident to arrest outside (Utah v. Strieff)
c. Independent Source Exception
i.
Murray v. US: independent source exception applies when:
1. If evidence was found illegally the first time, the same type of evidence is
admissible if obtained through legal means (eg. with warrant) AND
2. Obtaining the warrant was not prompted by illegal conduct or tainted search.
ii.
Nix v. Williams: Must balance the need to deter unlawful police conduct vs the public
interest in having the jury see all the evidence.
1. We must ensure that police is not put in the worse position that they would’ve
been if no police error had occurred at all.
2. General sense: If unlawful entry gains x and y, but z is learned from other means,
z is admissible.
3. Specific sense: If unlawful entry gains x and y, independent source must say what
x and y said.
d. Inevitable Discovery Exception
i.
Would the evidence have been found anyways?
ii.
New York v. Harris: If statement is made outside of house and the police has PC to arrest,
the statement doesn’t need to be bared even if the arrest was made in the home in
violation of Payton.
Miranda
23. This is a prohibition against introduction of involuntary statements, but the voluntariness test isn’t about
reliability - it’s about whether a subject’s free will was overridden (14A protection)
a. Confessions obtained through coercion or physical force are dismissed no matter how reliable
b. But usually it’s about the nature of the psychological pressure. No bright-line rule.
i.
Lengthy, uninterrupted interrogation is inherently coercive
1. Ashcraft: 36 hours was inherently coercive
2. Sleep deprivation can be a form of torture
ii.
Individual’s circumstances - Spano. (It’s possible that none of these individual factors are
dispositive - it’s about the combination)
1. He was emotionally unstable
2. Subjected to a long interrogation
3. Many officers involved
4. Repeated refusals to answer
5. Denial of requests for attorney
iii.
Confession can be voluntary even if the cops lie - Frazier
1. Standard police trickery isn’t necessarily abhorrent, though it can be
iv.
Mere fact that a person can’t think rationally isn’t enough to dismiss - Connelly
1. BUT if cops exploit a disabling condition to gain a confession, it’s dismissed Blackburn
24. Was there Miranda violation for 5A (Self-Incrimination)?
a. Four basic rules of Miranda, triggered by custodial interrogation
i.
Confessions resulting from custodial interrogation are inadmissible unless subject
receives warnings that he has right to remain silent, etc.
ii.
If suspect invokes right to remain silent, any statement product of questioning after that
is excluded
iii.
If suspect asks for attorney, any statement after that without attorney are excluded
iv.
No confession may be introduced without Miranda unless govt. can prove that suspect
knowingly, voluntarily, and purposefully waived their rights
25. What is custody under Miranda?
a. Would a reasonable person know they’re free to leave?
i.
When determining a fact’s impact on this: Is it objectively apparent in most cases? Is it the
type of fact that cuts in one direction and is easy for officers to evaluate? Does it make
the person feel MORE or LESS in custody?
b. JDB: Custody test is an objective reasonable test, and subjective mind is irrelevant.
i.
Age must be taken into account, but not mental IQ or education. (INTERNAL FACTORS)
c. Howes - EXTERNAL FACTORS determining whether someone would know
i.
Location and duration of the questioning
ii.
Statements made during the interview
1. Did they say you were free to leave?
iii.
Were there physical restraints?
iv.
Did the person arrive voluntarily or involuntarily?
v.
Number of officers?
vi.
Who else was present who might support the suspect?
d. Berkemer - Roadside questioning is permissible because it doesn’t impair defendant’s exercise of
5A privilege
e. Innis: when someone is formally arrested, they’re in custody.
26. What is interrogation under Miranda?
a. Innis: Interrogation is 1) express questioning, 2) a functional equivalent
b. List of relevant factors to determine if the statements directed at them constitute interrogation:
i.
Blaming the victim
ii.
Statements that posit guilt or seek to minimize moral impacts
iii.
Reverse lineup
iv.
Is the remark directed towards suspect?
v.
Is it about suspect’s vulnerability?
vi.
Is the officer aware of that vulnerability?
vii.
Is this a brief remark or an extended soliloquy?
viii.
Are the officers trying to elicit a response?
27. Was there a public safety exception to Miranda?
a. Quarles: Objective test.
i.
Was there an immediate threat to public safety?
1. Concealed gun hidden in mall- others could pick it up.
a. Objective evidence of a public safety threat requiring immediate action
ii.
Was the questioning reasonably prompted by/aimed at that specific threat?
1. Asking arrested suspect where that gun is.
28. Were the illegally obtained statements introduced at trial? 2 Tests for Due Process Violation.
a. Yes → use the involuntariness test.
b. No → no violation of Miranda or self-incrimination clause because a violation of a prophylactic
rule doesn’t mean the violation of 5A, which only triggers if there is a criminal proceeding.
i.
Only use the “shocks the conscience test” for due process violation (Ashcraft & Chavez)
ii.
Chavez: police questioning while suspect is paralyzed/blinded and getting treatment.
29. Do these illegally obtained confessions need to be excluded? (Fruit of the Poisonous Tree for 5A)
a. US v. Patane: Unlike exclusionary rule for 4A, if the police question the suspect without Miranda
warnings and it leads to physical evidence, the evidence is admissible but the statements are
excluded. (Kennedy’s narrowest reading)
b. 2nd Confessions
i.
Oregon v. Elstad: 2nd confessions may be included if it was a GOOD FAITH MISTAKE and it
was a NEW AND DISTINCT EXPERIENCE.
1. If detailed confession was made without MW in the 1st interrogation, then police
gives MW and asks the suspect to repeat himself for the second time, this must
be excluded.
ii.
Missouri v. Seibert: FACTORS ON NEW & DISTINCT EXPERIENCE
1. Extent to which substance of confessions overlap
2. Extent of detail of 1st confession
3. Whether same or different officers
4. Did location of interrogation change
5. Lapse of time
6. Whether the police used prior statements to secure the 2nd confession
7. Whether there is a preface given the second time, saying that past confessions
made without MW cannot be used. (STRONGEST ONE)
iii.
Seibert: There has to be a finding that there is a deliberate Miranda violation intended to
undermine the effectiveness of later warnings. If not, no violation. If yes, two possible
cures:
1. Substantial change in time or circumstances, such that a person would think this
is a new experience
2. Telling the suspect that prior statements can’t be used against them.
30. Did the Defendant waive his 5A rights to remain silent?
a. Express Waiver (Berghuis)
i.
Voluntary
ii.
Made with full awareness about the right and the consequences of abandoning the right.
b. Implied waiver (Berghuis)
i.
Given Miranda warnings
ii.
Warnings understood by the accused
iii.
Uncoerced statement made
Massiah
31. Was there a 6A violation to the right to counsel?
a. Violation when an incriminating statement is made:
i.
After formal charges/adversary judicial proceedings have commenced
ii.
Deliberate elicitation
1. Subjective test. words or conduct deliberately intended to provoke incriminating
response. Stimulating conversation, etc. This does NOT include acting as a
b.
c.
d.
e.
listening post or responding naturally or spontaneously to a statement made by
defendant
iii.
By government agent
iv.
In the absence of counsel
v.
Without any waiver of 6A rights.
1. Defendant has to have known they had right to counsel, that what he said could
be used against him, and that he made voluntary choice to speak.
2. Usually done by obtaining Berghuis waiver - reading Miranda, making sure it’s
understood, and getting a voluntary statement from defendant
Henry: cannot deliberately elicit/actively stimulate conversation.
Kuhlmann: can allow undercover passive listeners as informants.
Texas v. Cobbs: 6A right to counsel is triggered by formal charges, so it is offense specific, and
doesn’t attach to investigations of different offenses arising from the same set of facts.
Spano: Confession was elicited from defendant after indictment, at a time when he should’ve
been entitled to an attorney. Statements can’t be used against him
i.
Similarly, Massiah was under interrogation but even more seriously imposed because he
didn’t even know it
32. Did the defendant invoke his 5A rights to counsel?
a. Unambiguous invocation
i.
Mere silence is not enough (Berghuis)
ii.
No need for specific language to invoke rights.
iii.
Third party cannot invoke for you (Burbine)
b. 2nd encounter rules: Once a suspect asserts his right to counsel, the police officer cannot try
again. (Edwards)
i.
UNLESS a) the suspect talks on his own volition, b) counsel is present, c) there has been a
break for 14 days (Shatzer)
ii.
Arizona v. Roberson: This applies even when police want to question a suspect about an
offence unrelated to the initial interrogation.
iii.
Minnick v. Mississippi: Cannot reinitiate interrogation without counsel even if the suspect
has consulted with counsel in the interim.
33. Did the Defendant waive his 6A rights to counsel?
a. Brewer v. Williams - invocation in police custody
i.
Cops can engage in deliberate elicitation once counsel is invoked, but the cops have to get
an explicit waiver FIRST
1. For Edwards to kick in, you have to invoke the right to counsel
2. Right to invoke is personal to the defendant. There can’t be an ambiguous
invocation.
3. Once 6A has been invoked, Govt. agent cannot elicit info WITHOUT express
waiver
ii.
“Christian Burial Speech” without counsel present violates Massiah
b. Montejo
i.
ii.
iii.
iv.
Person who invokes right to counsel doesn’t get benefit to Edwards rule insofar as
benefits of Massiah are concerned
Insofar as 6A and Massiah are concerned, normal Miranda waiver rules apply – you can
get an express or implied waiver
Under Montejo, suspect can’t invoke Miranda right to counsel anticipatorily. Earlier
invocations don’t county as far as Edwards rule – must happen when approached for
custodial interrogation
Invocation CAN occur before Miranda warnings have been given
Witness Identifications
34. Was the 6A right to counsel deprived during witness identification?
a. US v. Wade: if no counsel present for post-formal charges line-up, then there is a 6A violation.
b. Right to counsel applies to line-ups and show-ups ONLY AFTER formal charges (Kirby)
c. This doesn’t apply to fingerprint, hair, DNA testing - less risk when counsel is not present
compared to witness ID.
d. US v. Ash: No 6A violation if it is merely mugshot/photographic viewing, whether it is before or
after formal charges.
35. Was there a due process violation during witness identification?
a. Perry Requirements: If the suggestiveness > reliability of ID and there is a substantial likelihood for
misidentification, then there is a due process violation.
i.
Suggestive
1. Does suspect look different from everyone else - Braithwaite
2. Only one picture presented
ii.
Unnecessary
1. Stovall: only black person in the room, but necessity overrides bc victim was the
only person who could ID and it was unclear how long she would live.
iii.
Police arranged (Perry)
1. Police must have arranged the suggestive features, not a third party.
iv.
Substantial likelihood for misidentification (Kirby)
1. Braithwaite features of unreliability:
a. Opportunity to view
b. Degree of attention/power of observation
c. Accuracy of description
d. Level of certainty of witness
e. Lapse of time
Entrapment
36. Did the government entrap the witness by guiding them to a crime they would otherwise not have
committed?
a. Jacobson: “Government agents may not originate a criminal design, implant in an innocent
person's mind the disposition to commit a criminal act, and then induce commission of the crime
so that the Government may prosecute”
i.
prosecution must prove beyond reasonable doubt that the defendant was going to
commit the criminal act prior to first being approached by Government
1. Were they predisposed BEFORE the government made contact?
b. Sorrells and Sherman are examples of what govt. CAN’T do
i.
Sorrells: govt. gained defendant’s trust
1. defendant had no disposition
2. agent lured D by repeated and persistent solicitation and played to his
sentimentality about the war to gain his trust
ii.
Sherman: informant played on defendant’s vulnerability, claimed they were going
through painful withdrawal
1. He wasn’t predisposed because his old convictions for selling heroin were stale
c. Russell is an example of what govt. CAN do
i.
Defendants were already in the business of making meth. Govt. just provided them the
opportunity - predisposition is obvious
ii.
The fact that the government HELPED is not relevant