Third Party Doctrine: An individual has no reasonable expectation of privacy in information or items voluntarily conveyed to a third party. Smith v. Maryland. - An individual assumes the risk of disclosure of information from the third party to the government. Dog-Sniff Searches A police officer who brings a drug-sniffing dog onto the curtilage of a home without permission constitutes a search under the Fourth Amendment. Florida v. Jardines. - The curtilage is a constitutionally protected area. - Physical Intrusion Test: 1) Did the officer search in a constitutionally protected area? 2) Was the search accomplished by unlicensed physical intrusion? A dog sniff of a car during a lawful stop is not a violation of the Fourth Amendment. Illinois v. Caballes. - The use of a well-trained narcotics-detection dog—one that does not expose noncontraband items that otherwise would remain hidden from public view—during a lawful traffic stop generally does not implicate legitimate privacy interests. Probable Cause - A police officer must have probable cause to conduct a warrantless search or arrest. - A police officer must have reasonable suspicion to stop and frisk someone. - Fourth Amendment: - “. . . no Warrants shall issue, but upon probable cause . . .” - Neutral and Detached Magistrate: - Probable cause must be determined by neutral and detached magistrate, not by an officer engaged in the often competitive enterprise of ferreting out crime. - Needs to be a separation of the judicial function from the executive function. - The magistrate cannot be biased—aka, cannot be involved in the investigation. - Spinelli-Aguilar Test: Apply these prongs to test the reliability of informant claims… 1) How does this person know what they’re claiming? Basis of knowledge. - There needs to be a 2) Track record for veracity? - Veracity goes to the truthfulness of the informant. - - Definition: The substance of all the definitions of probable cause is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized. Pringle. - Passengers of a car are typically part of the enterprise of the driver Pringle, but check the text. Probable Cause to Arrest: Fair probability or reasonable grounds to believe that a crime has been committed and that the suspect committed it. Probable Cause to Search: Fair probability or reasonable grounds to believe that evidence of a crime is presently in the place to be searched. - Probable cause is a fluid consent, turning on the assessment of probabilities in particular factual contexts. Illinois v. Gates. - More than a hunch, but less than reasonable doubt and preponderance. - Probable cause is an objective standard; subjective intentions of the police officer is irrelevant. Whren. - If a reasonable officer would have found probable cause to believe that a traffic violation has been committed, then the stop is valid. No subjective intentions. - Reasonable mistake of law does not invalidate probable cause or reasonable suspicion. Heien. Warrants - Requires: 1) Probable Cause - Probable Cause to Search: There are reasonable grounds to believe there is contraband or evidence of illegal activity in the place to be searched. - Probable Cause to Arrest: There are reasonable grounds to believe that a crime has been committed and this suspect committed it. - Can put as much inadmissible evidence into the application for a warrant as one wants. - Totality of the circumstances! - Probable cause must be determined by a magistrate that is: - Neutral and detached; - Not an officer engaged in the often competitive enterprise of ferreting out crime; - Separated from executive functions; and - Not biased. 2) Oath or Affirmation - The warrant must be supported by oath or affirmation. E.g., the officer affiant swears to the facts provided in their affidavit. - Ordinarily presumed reliable because the police officer provides information under oath. - Defense can challenge if they believe the affiant lied under oath to the judge who issued the search warrant. 3) Particularity - The warrant must particularly describe the place to be searched and the persons or things to be seized. Maryland v. Garrison. 4) Reasonableness - The execution of the warrant itself must be reasonable. - Unless circumstances dictate otherwise, officers must knock and announce their identity before forcibly entering a dwelling to execute a search warrant. Richards v. Wisconsin. - Exception: If not doing it would lead to the destruction of evidence or flight of the suspect, the magistrate judge can waive the knock and announce requirement. Searches - Police can detain persons present at the time of search. Michigan v. Summers. - Police can handcuff, detain, and interrogate persons present at the time of search. Muehler v. Mena. Exigent Circumstances - Definition: A reasonable belief in risk of flight or destruction of evidence. - The EC that justifies the warrantless action restricts the scope of the search. - Exception to the warrant requirement. - Absent exigent circumstances (reasonable suspicion that doing so would pose a danger to the officers or lead to the destruction of evidence), the police must knock and announce. - Officer safety is a massive factor in the eroding of Fourth Amendment protection. - There may be times when the police are allowed to waive the knock and announce requirement. - Exigent Circumstances exist when: 1) Emergency aid; a) Officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury if the objective facts justify such action. i) Subjective motivation is irrelevant. Wrenn. 2) Hot pursuit; a) Limited in time and space. i) Time: Search must be prior to/contemporaneous with the discovery of suspect/weapons. Once found, search must end. ii) Space: Can only search where they reasonably believe suspect/weapons may be found. (1) More than a minor offense. Welsh. 3) Preventing the imminent destruction of evidence. a) Pg. 169-170, police-created exigency allowed. - Exigency Factors: - Graveness of offense (e.g., violent felony offense) - Armed suspect (increases danger to the community) - Probable cause plus (more than the minimum) - Strong belief that the suspect is inside - Suspect will escape unless apprehended - Reasonableness of police officers’ conduct - Time of entry (daytime entry is more reasonable because it is less intrusive) - The exigent circumstances rule, which allows for the introduction of evidence obtained in a warrantless search, applies only when the police do not gain entry to the premises by means of an actual or threatened violation of the Fourth Amendment. Kentucky v. King. - This is an objective inquiry. Plain View: - Seizure: Seizure of property occurs when there has been some meaningful interference by the government with an individual’s possessory interests in the property in question. - Definition: Officers may search or seize items they see in plain view during the course of a lawful search even if they have not secured a warrant in advance for those items as long as they comply with certain requirements. 1) Police must lawfully be at the vantage point from which they can see/seize the evidence. - Original intrusion must be lawful. a. Acting pursuant to a valid search warrant b. Acting pursuant to an exception to the warrant requirements c. Executing an in-home arrest pursuant to a valid arrest warrant d. Officer’s activity doesn’t constitute a search - The item must be observed while the officer is confining his activities to the permissible scope of that intrusion. 2) Incriminating value of evidence must be apparent from the face of the object. - The police must have probable cause to believe the item is evidence of a crime or contraband. - Test: 1) Officers must observe from a lawful vantage point. 2) Officers must have the right of physical access from that vantage point. 3) - The Automobile Exceptions: - Rationale: Vehicles can drive away with contraband. - Rule: Must have probable cause to believe contraband or evidence of a crime is in the automobile. - Search includes the entire vehicle, including the trunk. - Mobile homes are more like automobiles than homes. Carney. - Reduced expectation of privacy. - If the officers have probable cause to believe contraband or evidence is within a car, they can search the entire car and whatever containers inside that could hold the object of the search. Acevedo. - If probable cause attaches to the container which is then placed in a car, the police can search the car and open the container when it is found. - Chadwick still applies. Plain Feel Doctrine: - An officer may seize non-threatening contraband detected during a protective pat down as long as the incriminating nature of the object is immediately apparent to the officer. - Test: 1) Is it a lawful frisk? a) Does the officer have reasonable suspicion to believe criminal activity is afoot and does the officer have reasonable suspicion that the individual is armed and dangerous? - A frisk is a limited search of outer clothing. Cannot search under the outer clothing or reach into pockets unless the officer detects contraband during the patdown. 2) Is the incriminating nature of the object immediately apparent to the officer? - The officer may not squeeze or manipulate the item. Search Incident to Arrest - Scope: - The arrestee’s person; and - The arrestee’s wingspan. - Area within the arrestee’s immediate control from which the arrestee might grab a weapon or destroy evidence. - Rationale: - Officer safety. - Reducing the chance that the arrestee might resist arrest or escape. - Avoiding the destruction of evidence. Inventory Searches - Special Needs Doctrine - Rationale: - Care-taking function. - Protects the owner’s property. - Permissible if inventory searches are routine procedures in the police department. Arrests - Terry Seizure: A person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained. Mendenhall, Bostick, and Hodari Test: Would a reasonable person feel free to leave (or terminate the encounter) and submits or is physically restrained? The police can arrest for minor offenses, even if the offenses themselves do not carry jail time. Atwater v. Lago Vista. - Police Exclusionary Rule General Rule: - Suppress illegally seized evidence. - Includes fruit of the poisonous tree. Rationale: - Deters bad police behavior. - Upholds integrity of the court. Criticism: - It’s a judicially-created remedy. - The 4th Amendment does not provide remedy. - Do the guilty go free because law enforcement blundered? - Are the costs greater than the deterrence? - The police are more professional now. (Funny.) - Defendants have other alternative defenses. Limiting Exclusionary Rule: - Does not apply to: - Violations of FRCP - Violations of international law - Grand jury proceedings - Civil proceedings - Sentencing - Parole and probation revocation - Forfeiture - Only applies to: - Intentional, reckless, or systematic error Exceptions: 1) Good Faith - Does not apply if the police officers rely in good faith on a facially valid warrant, even though the appellate court later finds insufficient probable cause. 2) Independent Source 3) Inevitable Source - Burden is on the prosecution to show by a preponderance of the evidence that the evidence in question would have been inevitably found in a lawful search. 4) Attenuation Doctrine - 3 Factor Test (Strieff): - Temporal proximity between the unconstitutional conduct and the discovery of evidence? - Presence of intervening circumstances? - Purpose and flagrancy of the official misconduct? 5) Impeachment Doctrine - Only bars prosecution from using illegally obtained evidence in the prosecution's case-in-chief. - Illegally obtained evidence may be used for impeachment. Fifth Amendment - Right against self-incrimination. Involuntary Confession: - Two Part Analysis: 1) Was there coercive police conduct? 2) Did that coercive police conduct overbore the will of the accused and render the confession involuntary? - “Was the defendant’s will overborne?” - Use the totality of the circumstances. - - Mental condition alone is not enough to make a confession involuntary. Connelly. - There must be some type of coercive police activity. Miranda Rights - Waiver must be knowing and voluntary. - Burden on the government to prove. - “Custodial interrogation.” - Triggered where there is custody and interrogation. - Custody: Where you are “significantly deprived of freedom.” - Interrogation: Answers elicited from direct questions. - A 5th Amendment violation technically doesn’t occur until the un-Mirandized statement is introduced in a criminal case. Miranda Warning Violations A second confession after a Miranda waiver is admissible only if there was a long enough break following the initial confession without a Miranda waiver to give a reasonable suspect the belief that he or she had a right not to speak to officers. Missouri v. Seibert (Mom burns down son’s dead body.) - Subjective understanding is irrelevant. - Kennedy Concurrence: Should be a subjective standard. Bad faith? Physical Evidence based on Miranda violation? Because the introduction of physical evidence at trial does not implicate the SelfIncrimination Clause, suppression of physical evidence found as a result of a suspect’s voluntary but unwarned statements is not required. Patane. - The Self-Incrimination Clause only protects against self-incrimination, nothing more. The fruit-of-the-poisonous tree doctrine is inapplicable unless physical evidence is found as a result of involuntary, coerced statements. Waiver of Miranda Rights - A valid waiver will not be presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. - What is sufficient? - A suspect doesn’t need to make an express statement waiving his Miranda rights. North Carolina v. Butler. - Waiver must be made by the totality of the circumstances. Where a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police. Berghuis v. Thompkins. - Right to remain silent must be expressly invoked. A witness’s silence in response to a law enforcement official’s question is not sufficient to invoke the witness’s right against self-incrimination, even when the official believes the answer may incriminate the witness. Salinas v. Texas. - How is a waiver after the assertion of rights treated? - Two distinctions: - Right to remain silent. - Right to counsel. Miranda does not bar police from subsequently questioning a suspect who previously invoked his right to remain silent, as long as the suspect’s right to end questioning has been scrupulously honored. Michigan v. Mosley. - If a defendant invokes the right to counsel, then the police cannot initiate further interrogation until they have been given access to counsel, unless the suspect initiates the communications. Edwards v. Arizona. Once a suspect has requested an attorney, police may not conduct an interrogation without counsel present. Minnick v. Mississippi. - The interrogation preclusion expires after 14 days. A break in custody ends the presumption of involuntariness established in Edwards v. Arizona. Maryland v. Shatzer. - What if the request for counsel is unclear? - The suspect must unambiguously request counsel. Otherwise, police do not have to stop custodial interrogation. Davis v. United States. Miranda Exceptions? - Three major exceptions: 1) Used for impeachment purposes 2) Obtained in emergency situation 3) Made at the time of booking the suspect in response to routine questions by the police - - Impeachment - Statements gained from a criminal defendant are admissible for impeachment purposes if the defendant chooses to testify at trial. Harris v. New York. - Must be used to protect the integrity of trials by addressing potential perjury. Emergencies - Statements obtained by police from suspects during emergency situations could be used against a criminal defendant even if Miranda warnings were not properly administered. New York v. Quarles. - Public-safety exception. 6th Amendment - Massiah Rule: 6th Am. right prohibits police or informants from deliberately eliciting incriminating statements. 6th Am. is offense-specific. McNeil v. Wisconsin. - Can elicit information regarding different offenses. Blockburger Test: Is it the same offense only when the elements of one offense are necessarily included in the elements of another offense. Right to Counsel - Sixth Amendment: Provides for the right to “effective” assistance of counsel. - Criminal prosecutions, not civil cases. The Fourteenth Amendment incorporates the Sixth Amendment right to counsel to the states. Gideon v. Wainwright. - If not incorporated, it’s impossible to have a fair trial. Overruled Betts v. Brady. - Automatically triggered by the prosecution of the defendant and does not depend on the defendant’s request for a lawyer. Brewer v. Williams. Right to counsel attaches at the defendant’s first appearance before a judicial officer after a formal charge is made, regardless of whether a prosecutor is present. Rothgery. No right to a jury trial for petty offenses. The Sixth Amendment right to counsel extends to defendants charged with any offense that carries a possible penalty of imprisonment. Argersinger v. Hamlin. - Can be classified as petty, misdemeanor, or felony as long as incarceration is on the table. Right for Effective Counsel Standard To establish the ineffective assistance of counsel, a convicted defendant must show: 1) his counsel’s performance was deficient because the lawyer did not act as a reasonably competent attorney, and 2) he was prejudiced by the deficiency because there is a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different. - Strickland v. Washington. - Three Circumstances with Presumed Prejudice: 1) Complete denial of counsel; - Extremely rare. 2) “Counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or; When a defendant in a capital trial is non-responsive after being advised of the best strategy for avoiding a death sentence, the attorney’s choice to use that strategy is judged under the ordinary ineffective assistance of counsel standard. Florida v. Nixon. - Basically, don’t be terrible at your job. 3) Actual conflict of interest. - Show: - Defense counsel was actively representing conflicting interests; and - The conflict adversely affected counsel’s performance for the defendant. - Burden is on the defendant. - Right to Expert Assistance: - Derived from the Due Process Clause. - Right of Self-Representation: The right to defend is personal and defendants have the constitutional right to represent themselves at trial if they so choose. Faretta v. California. - - A state court may require a defendant to be represented by a lawyer if he does not have the ability to conduct the trial himself due to severe mental illness, even if the defendant is competent to stand trial under the Dusky standard. Edwards. Enemy combatants are afforded the right to counsel.
