Milstead-Evans 1
Criminal Procedure Outline
Virginia Milstead-Evans
I.
II.
Introduction to the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.
A. Through the doctrine of incorporation, the Fourth Amendment became applicable to the states—through the 14th
Amendment. Most amendments are therefore likewise applicable to the states. One amendment that is not is
the 5th, right to indictment by grand jury.
B. The Fourth Amendment protects the “people,” which doesn’t include foreign citizens with no connection to the
US. It does protect foreign nationals living in the US and citizens living anywhere.
C. “No warrant shall issue except based on probable cause issued by a neutral and detached magistrate on oath or
affirmation.” This means any search is presumptively unreasonable unless it has a warrant. The standard of
review on appeal for issuance of warrants is “substantial basis.”
D. The fundamental concepts arising out of the Fourth Amendment are:
1. Prior justification for police action: the police must possess information sufficient to constitute
probable cause (or an alternative standard of justification) in order to lawfully conduct a search or
seizure.
2. Limited scope of police action: Even when justified by probable cause or otherwise, searches and
seizures are confined by limitations of space and time. The scope of the permissible search is
generally defined by the original justification that authorized it.
3. Requirement for a warrant: in some situations one is required, in others, it is excused.
4. Reasonableness clause analysis: In some areas, the requirement for probable cause has been replaced
by balancing tests that weigh the governmental necessity for the search against the magnitude of the
privacy intrusion involved.
What constitutes a search?
A. Two-prong test (Katz) to determine whether the action is a search:
1. Subjective Expectation of Privacy:
a. An individual must take affirmative steps to protect her privacy interest in order to satisfy
this prong.
b. Abandonment of property found not to meet subjective manifestation test.
c. Open and notorious behavior may also negate any subjective expectation of privacy.
2. Legitimate or reasonable expectation of privacy:
a. “Open fields” (from Oliver v. United States) are not a legitimate privacy interest: an individual
may not legitimately demand privacy for activities conduct out of doors in field, except in the
area immediately surround the home. An open field need not be “open” or a “field.” Really, open
field is more of an “unprotected area.”
i.
The majority in Oliver also found that curtilage is protected by the amendment. It is
just a question of how far cartilage extends.
ii.
Some courts have limited the search of open fields to “observation” searches.
b. There are 4 factors that determined whether an area is curtilage (which is protected): 1)
proximity of the area to the home; 2) nature of the uses to which the area is put; 3) steps
taken by the resident to protect the area from observation by passers-by; 4) whether the area
was included within an enclosure that included the home.
c. Not a search when there is access by member of the public. When a person acts in public, she
cannot expect privacy.
d. When one party agrees that the police may listen in, the other party is not protect by the
Fourth. This does not apply to planted mikes,that are not connected to the party to the
conversation.
e. Records kept by banks are not protected.
f. Phone records are not protected. A person has no expectation of privacy in information he
voluntarily turns over to third parties. The numbers you dial are already known to the phone
company.
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g.
There is no interest in the number you leave someone on their pager. However, the police may
not take a beeper out of the possession of a suspect and use the numbers in it against him.
h. No privacy interest in trash.
i. Belongings of the homeless kept in public areas: courts have held that there is a legitimate
privacy interest in these belongings.
j. No privacy in bathroom stall.
k. No privacy from aerial surveillance or lower flights with helicopters.
l. Privacy interest violated when an officer feels a bag stored in overhead storage of a plane or
bus.
m. Investigative activity is not a search if it an unveil only illegal activity. United States v. Place.
i.
Canine Sniffs are not considered searches b/c they are only used to determine
whether someone has narcotics.
1) A dog signaling narcotics does not allow the police to open the luggage:
THAT would be a search. The police then have to obtain a warrant.
2) There are problems with sniffs b/c money is so contaminated with drugs.
3) There may be a different outcome with a dog sniffing a person or a home.
Lower courts have varied on this issue. The Supreme Court has not yet
decided.
4) Dog sniff of cars okay.
ii.
Chemical Testing (Jacobsen): test to see if the white powder was cocaine.
1) This does not include testing urine samples, which is a search. (Skinner v
Railway Labor)
iii.
Thermal Detection Devices
1) Reasonable expectation of privacy in the heat radiating from your home.
This is b/c it can actually reveal private activity in the home, not just the
existence of marijuana plants.
iv.
Sensory Enhancement Devices
1) Telescopes to look into house invade reasonable expectation of privacy.
2) If person otherwise exposes herself to public view, binoculars, etc. are
allowed.
3) Shining lights on something doesn’t constitute a search.
4) In Dow Chemical v US, magnified photographs taken from an aerial view were
allowed.
5) One test that courts use for this is whether the thing searched is in
“general public use,” in which case more enhancement will be allowed.
v.
Tracking Public Movements
1) United States v Knotts: okay to use tracking device. They only used it to do
what they could have done with their senses—just followed the car.
vi.
Beeper Issues
1) United States v Karo: in this case, the beeper allowed the police to know
where the object was in the house. Since this was information that they
could not have obtained just with their own sense, the court ruled that it
was a search.
vii.
Informants
1) A home owner might not be able to claim that his privacy rights are violated
if he permits a third person to enter the home with property that contains a
beeper. (Also from Karo).
n. Investigative Activity Conducted by Private Citizens
i.
The Fourth Amendment only gives protection against search and seizure by the
government. This is called the “state action requirement.” (from the 14th amendment).
“State action” means any governmental act.
ii.
May be different if private citizen is enlisted by the government to do the search.
1) The question whether the person is a police agent is answered by whether
the private person believed at the time of a search or seizure that her
action had been explicitly or implicitly requested or required by police or
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other government agents, who had reason to know that their actions might
well give rise to such belief or that such a belief existed.
iii.
Scope
1)
There are limits to what the officers can do after private citizen has
conducted a search—they cannot elaborate on it without a warrant.
2) If an initial intrusion is not covered by the Fourth Amendment, a later
intrusion by police officers to the same effect is also free from Fourth
Amendment constraints. (Jacobsen—the fed ex package).
iv.
It does not matter if the private individual was trespassing at the time she uncovered
the information. It doesn’t matter how she found the information—it could be
completely illegal. This is b/c only state action is precluded by the 14 th amendment.
o. Controlled deliveries: In Illinois v Andreas, the police resealed a container after a valid customs
search and then later re-opened it without a warrant. They had only re-sealed it to deliver it.
i.
There could be exceptions if the container was out of the officials’ possession for a
long time and was possibly put to different use during that time.
p. Foreign Officials: “evidence obtained by foreign police from searches conducted in their
country is generally admissible regardless of whether the search complied with the fourth
amendment.”
i.
This is b/c these searches are not “state action” for purposes of the Constitution.
ii.
One exception is if the search is so extreme as to shock the judicial conscience.
(Torture, etc. would violate due process since it is inherently unreliable). Another is
when the U.S. participated in the investigation.
q. Jails, Prison Cells, and Convicts
i.
No privacy interest in cells at all. Cannot wantonly destroy property.
ii.
There is a lesser expectation of privacy for prisoners.
iii.
The person of a prisoner may retain some right to privacy. Any searches must be
reasonably related to correctional concerns.
r. Public Schools and Public Employees
i.
There is a privacy interest in items brought to public school, but reasonableness is
defined differently (don’t need a warrant). Reasonable suspicion and reasonable
relation to educational goals is enough.
ii.
Police may assist in that search, as long as school officials are involved, the test is
reasonable suspicion.
iii.
The normal rules apply w/ regard to state universities and colleges: probable cause.
iv.
Random searches are not allowed in public schools.
v.
Government employees: 1) with regard to any information observed in the public area of
a government office, there is no search at all; 2) w/ regard to the private areas of a
government office, there is roughly the same protection as school children receive. The
level of protection is that searches must be reasonable under all the circumstances.
III. Obtaining A Search Warrant
A. Probable Cause: a general requirement for reasonability
1. Probable cause means reasonable probability. It is not the same as the quality of proof required to
find that someone is guilty of a crime. It does mean, however, more than mere suspicion or reasonable
suspicion.
2. Demonstrating probable cause with an informant:
a. Often, informants are inherently unreliable b/c they are part of the criminal culture itself and
they are selling information on others in order to save their own skin.
i.
A large number of the convicts released b/c of DNA evidence are the result of false
informant statements. (About 1/5).
b. The creation of a two-pronged test (Spinelli and Aguilar)
i.
The informant must have an adequate basis of knowledge.
1) This shows that the information is credible. Generally, the rules of evidence
do not apply and therefore hearsay is acceptable. It’s a question of
credibility.
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2)
It is “especially important that the tip describe the accused criminal activity
in sufficient detail that the magistrate may know that he is relying on
something more substantial than casual rumor circulating in the underworld
or an accusation based merely on an individual’s general reputation.” Spinelli.
ii.
The tip has to provide facts sufficiently establishing either the veracity of the
affiant’s informant, or, alternatively, the “reliability” of the informant’s report in this
particular case. This is called the veracity prong.
1) To prove the veracity, it is good to show that the informant has a record of
success.
2) If the informant makes statements against penal interest, that is also
something that could establish his reliability since he/she wouldn’t make it
up if it meant going to jail.
iii.
Finally, the tip must provide facts sufficient to constitute probable cause or there
must be corroborative facts to fix any flaws in the informant’s statement (either
flawed b/c not entirely reliable or b/c there isn’t enough information).
1) In Draper, the great detail of the statement tended to show its reliability
as to the basis of knowledge.
c. In Illinois v Gates, the Court reasoned that the “two-prong” test “should be understood simply
as closely intertwined issues that may usefully illuminate the commonsense, practical question
whether there is “probable cause” to believe that contraband or evidence is located in a
particular place.” In its place, they put the “totality of the circumstances” test.
i.
“The task of the issuing magistrate is simply to make a practical, common-sense
decision whether given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.”
ii.
From United States v Morales, a circuit court case, sets out four factors from Gates
and the totality of the circumstances test:
1) the nature of the information
2) whether there has been an opportunity for the police to see or hear the
matter reported
3) the veracity and the basis of knowledge of the informant;
4) whether there has been any independent verification of the matters
reported through police investigation.
d. Courts don’t require more tests of reliability for witnesses to crimes and citizen informants
who identify themselves. Accomplices are also trusted.
3. From an officer
a. An officer’s good faith and honest belief as to the suspicion of a defendant, even if the officer
has a reliable track record, is not sufficient to establish probable cause. An officer is presumed
to be honest when making an affidavit, so the credibility of an officer is never questioned.
b. Must be oath or affirmation from police officer.
c. If the officer avers that she has first-hand knowledge of the facts used to demonstrate
probable cause, the only question is whether the sworn facts are sufficient to meet the
threshold. The magistrate is informed of what the officer knows and makes an independent
determination of sufficiency.
d. An officer must disclose supporting facts and circumstances. Gates.
B. The particularity requirement – premises
1. The particularity requirements limits the place to be searched, the things to be searched for, and the
places police are allowed to be.
a. Plain view: anytime the police have a right to be where they are, they can keep anything that is
within plain view. If they have no right to be there, they cannot keep what they see in plain
view.
2. The premises to be searched must be described w/ “reasonable particularity.” Technical precision is
not required in all cases. The degree of particularity which is reasonable depends on the nature of the
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place to be searched, and on the information that an officer could reasonably obtain about the
location before a warrant is issued.”
a. This means giving exact address or apartment number, not wanting to search all of apartment
building, etc.
b. In “multiple dwelling” situations, the officers may be able to just specify the building if the
officer knows that that are multiple units and believes that there is probable cause to search
each unit, or the targets of the investigation have access to the entire structure.
3. Mistake of address
a. The standard for sufficiency of description is whether the warrant enables “the executing
officer to locate and identify the premises with reasonable effort, and whether there is any
reasonable probability that another premises might be mistakenly searched.”
b. Lyons is an example of when the address was mistaken—the house was on the corner and they
put one cross street down instead of the other—and the court still ruled it was particular
enough since you could still tell from the description what house was to be searched.
c. Ellis is an example of a warrant that was rendered insufficient b/c of the mistake in address.
The warrant only had the address, and no other description.
4. Breadth of the place to be searched
a. When the language says “premises,” courts have held that this includes the garage or any
structures within the curtilage, including vehicles.
b. If Holly was being searched, the police could search my room as well, unless it was absolutely
clear I was no involved in criminal activity.
C. Person must be described with particularity
1. An arrest warrant must describe the person to be seized with sufficient particularity.
D. Describing things to be seized
1. Must describe what the police are looking for with reasonable specificity.
2. Andersen v Maryland: the Court allowed the phrase “together with other fruits, instrumentalities and
evidence of crime at this [time] unknown,” to be attached at the end of a very particular list b/c it
was clear that it pertained to the one specific crime of fraud in selling a certain lot.
3. Even if a clause in a warrant is overbroad, the defect will not ordinarily taint the entire search. Thus,
in LeBron, the court “affirmed the concept of severability” and held that an item seized pursuant to a
particularlized clause in a warrant was properly admitted at trial, even though other items improperly
seized pursuant to a clause allowing seizure of “records and other stolen property.”
4. This requirement also depends on the nature of the thing to be searched. If you are looking for
money, then the description would have to be general b/c of the nature of money, not being unique.
But if you are looking for stolen jewelry, the description would have to be more specific since jewelry
can be unique and the person is likely to also own legal jewelry.
a. In United States v Strand, there was an issue with the description “stolen mail.” The court
regarded this sufficiently particular with regard to looking for mail with different addresses on
it, but no objects about the house that could have been taken from the stolen packages.
E. Reasonableness can still be questioned, even when there is a warrant. The court, for example, in Warden v
Hayden, found that even though there was probable cause, it was not reasonable to perform surgery to remove a
bullet from the suspect’s body. The bullet wasn’t needed necessarily for the case, and it posed a danger to his
body to do the surgery.
F. Anticipatory warrants may be issued on a condition precedent.
IV. Executing the Warrant
A. Knock and announce requirement. After giving notice of their authority and purpose, they may force entry if
refused admittance. Refusal can be constructive or reasonably inferred.
1. Requirement arose out of reasonability requirement in the fourth amendment. It is not a rigid
requirement.
2. Amount of time officers must wait depends on time of day, etc.
3. There are some exceptions, so the rule isn’t rigid. Hot pursuit of a suspect, the risk of destruction of
evidence and the safety of officers may be reasons not to announce.
4. The police must have “reasonable suspicion” that knocking and announcing would be dangerous, futile,
or destructive to the purposes of the investigation.
a. Many of these are also exceptions to the warrant requirement.
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5. It is up to the defendant to make a prima facie case that they didn’t knock.
6. If door is already open, they don’t have to announce or knock. Some courts have wanted to say that a
search for drugs per se presents a possible destruction of evidence, but this rule was decided to be
too broad. There was also the concern that other crimes would become per se no-knock cases. It was
decided that a better approach is to look at each case on a case-by-case basis.
7. Some states allow the magistrate to determine in advance if it should be no-knock.
8. If they obtain entry though consent, knock and announce is not required.
9. Can damage/destroy property when forcing entry.
B. Timing and Scope of Execution
1. Some jxns or warrants specify time for execution.
2. Delay may leave officers unable to execute their warrant if intervening circumstances negate the
previous showing of probable cause.
3. Can only look in places where specified objects might be found. Can’t look for an elephant in a
microwave.
C. Use of distraction and intimidation devices
1. Viewed from the perspective of reasonable officers on the scene.
D. Unreasonably intrusive searches: for example, search for bullet in body of suspect was unreasonable b/c the
probative value of the bullet was outweighed by the danger imposed on the suspect by the surgery.
E. Must terminate search when specified items have been found.
F. Presence of occupant: most courts hold that the Fourth Amendment does not require the officers to try to
conduct the search in the presence of the occupant.
G. Must serve with copy of warrant, but this doesn’t necessarily have to be done before the search. It doesn’t
violate the Constitution to do it after the search.
H. Can use the help of third parties to execute a search. The third parties must be relevant to the search, so media
ride alongs are unconstitutional.
I. The magistrate
1. The magistrate must be neutral and detached, do not have to have legal training, only be capable of
determining whether probable cause exists for the requested arrest or search.
2. What are circumstances in which the magistrate may not be neutral and detached? If the magistrate
is a prosecutor. Or if the magistrate gets paid for issuing a warrant, but not paid if not warrant is
issued. If the magistrate actually assists in the execution of the warrant, there is also no neutrality.
Rubber stamp warrants, with which the magistrate doesn’t put any thought into it, are difficult to
prove but also not neutral and detached.
V. Public Arrests
A. Public arrests without warrants are constitutional.
B. “A peace officer is permitted to arrest without a warrant for a misdemeanor or felony committed in his presence
as well as for a felony not committed in his presence if there was a reasonable ground for making the arrest.”
Watson.
1. In other words, while with a search, it is presumptive that a search without a warrant is unreasonable,
this is not the case with arrests. The justification is that the inherently dangerous nature of making
arrests obviates the need for an arrest warrant.
2. Police can arrest when they think it is the best time in terms of collecting of evidence, safety, etc.
3. Arrests still must be based on probable cause.
4. If an arrest is not valid, subsequent searches, even w/ consent, are not valid. Any search made
incident to the search is not valid.
5. The fourth amendment does not distinguish between arrests for misdemeanors and arrests for
felonies, although under the common law, a misdemeanor arrest was treated differently from felony
arrests. Many states still provide that arrests for misdemeanors require a warrant unless the crime
was committed in the presence of the officer. The Constitution does not treat them differently.
C. Force may not be used to prevent the escape of a felon unless it is necessary to prevent the escape and the
officer has probable cause to believe the suspect poses a significant threat of death or serious bodily injury to
the officer or others. Tennessee v Garner
D. Protections against erroneous warrantless arrests
1. Gerstein v Pugh: the court said that although you do not have the right to a warrant prior to being
arrested, you do have a right to a probable cause hearing promptly after having been arrested. The
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E.
VI. Arrests
A.
Is taking
someone in
for
questioning an
arrest?
B.
C.
VII. Arrests
A.
same kind of probable cause determination that is required prior to a search warrant is required after
being arrested if you continue to be held. This is only required for persons who are held after you are
arrested, not if you are released on your own or on bail.
2. The hearing does have to be prompt. There has been litigation subsequent to this rule, made more
specific in McLaughlin: prompt means within 48 hrs. This isn’t an absolute rule, it’s a definite line to
give guidance. If it is held longer than 48 hrs. after you are arrested, it is likely that your rights have
been violated. Otherwise, the rule has probably been satisfied. An exception: for example, if you are
arrested and the hearing is 5 days later, and the reason is that there were floods, fires, earthquakes
and everything got closed down and made it impossible to move forward, then the 5 days is still okay.
If it is possible to have the hearing within 2 hrs, but the police keep you in jail for an additional 46
looking for probable cause, then that violates the rule.
3. The hearing is the same as that would be required prior to search warrant. That means the defendant
doesn’t have the right to be present or have an attorney present. The police write their oath or
affirmation, like they would do with a search warrant.
4. Powell v Nevada: if this case, the defendant was held for 72 hrs. After 48 hrs. but before the 72, the
defendant confessed. So the question is what happens during that time. If you make an incriminating
statement after the time you should have been given a probable cause hearing, is it admissible? The
court never reached a decision we have been made aware of.
The unconstitutionality of an arrest does not itself serve as a defense to charges. That is, a Δ may be tried and
convicted regardless of the fact that his arrest was made in violation of the 4th amendment. The legality of the
arrest, however, is important in determining whether evidence obtained pursuant to a search that was incident to
the arrest must be suppressed.
in the Home
Absent exigent circumstances, an arrest cannot be made in a home without a warrant. The arrest warrant must
be founded on probable cause and it implicitly carries with it limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is within. “Reason to believe” is determined by the
officers based on the totality of the circumstances, whether there is a reasonable belief that the suspect is at
home at that time. Payton v New York
1. If they had a right to be in his home to arrest Payton, they would have the right to keep whatever
evidence they found. But if they didn’t have the right to be there, they didn’t have the right to use
the evidence.
a. If you have the arrest warrant, then you do not need a search warrant for searches in the home
incident to the arrest, like with plain view evidence, etc.
b. Payton only refers to the house itself, not the curtilage.
Some courts have stated that if the defendant is ordered to open the door under a lawful claim of authority, and
is arrested upon opening the door, then the arrest occurs in the home and a warrant is required. McGoldrick
thinks this is the better rule. Other courts hold that if the officers remain outside the doorway and inform the
defendant that he is under arrest, then the arrest is made in public b/c the officers never physically entered
the home.
1. Santana held that if the person was standing in the threshold of the door, then the police can arrest
without a warrant. The cases don’t make a distinction as to how much in or out of the threshold they
are—if they are at the door, then they can arrest. The rationale is that there is no violation of
privacy.
a. If the police use a surreptitious way of getting you to open the door, “delivery!” Then it is not
the voice of authority, and the arrest is valid.
2. Payton applies to arrests conducted in a homeless shelter but no in public areas a homeless person
might call “home.”
These protections also apply to properly rented hotels or motel rooms during the rental period.
in the home of a third party
A search warrant must be obtained to look for a suspect in the home of a third party, absent exigent
circumstances or consent. Steagald.
1. If the suspect lives on the premises, only an arrest warrant is needed.
2. If he is just a visitor, a search warrant is needed. Search warrants are more protective than arrest
warrants b/c of the particularity requirements.
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3. This case addresses the rights of the third party, not the original suspect. This right is personal and
cannot be asserted vicariously by the person named in the search warrant. This issue is called
“standing.” In terms of the Payton and Steagald rule, you have to focus on whose rights are being
protected. A suspect doesn’t have “standing” to assert the rights of the homeowner.
B. An arrest warrant is needed to arrest an overnight guest in the home of a third person. The court rejects the
argument that the home must be one’s own in order to have an expectation of privacy there. Minnesota v Olson
1. What protections were there for the home owners? If evidence is found as to the homeowners, the
police would need a search warrant.
C. For one simply on the premises of another for a limited purpose and time, there is no need for a warrant to
protect that person’s rights. Minnesota v Carter.
1. There was a search of this house without a warrant, but the suspects had no standing to assert the
homeowner’s rights. The question also turned on whether they were social or business guests, and they
determined that these guys were business guests. (this rule is implied in dicta).
VIII. Materials witnesses
A. They may also be arrested if “it is shown that it may become impracticable to secure his presence by subpoena.”
B. Warrant must be based on probable cause that 1) the testimony of the witness will be material, and second, that
is may become impracticable to secure his presence by a subpoena.
C. Federal statute provides for release if the witness’ testimony can be adequately secured by deposition. For most
States, there is no statutory limit on the permissible length of detention of a witness who cannot pay the
required bond.
IX. Stop and Frisk
A. Can stop on reasonable suspiction (particularized suspicion):
1. Terry v Ohio met this test b/c the officer followed the men and watched them closely, and in light of
his 30 years of experience, believed they could be dangerous and were about to commit robbery. He
questioned them and identified himself, and nothing made him feel that he was in safety—they
continued to act suspiciously. Based on these grounds, he felt the outside of their clothing for
weapons, and limited his search to these purposes.
2. Adams v Williams: the informant’s tip about the car was the basis for reasonable suspicion—although
with regard to Spinelli or Gates the tip wouldn’t be reliable, the standard is lower. The informant’s
statement wasn’t enough except that it was immediately verifiable.
3. Determining Reasonable suspicion:
a. Anonymous tips: sufficient grounds? An anonymous tip that is “significantly corroborated” by a
police officer’s investigation can provide reasonable suspicion for making a stop. Alabama v
White.
b. The test the courts apply from Gates, based on the totality of the circumstances for probable
cause, works for reasonable suspicion as well. Totality of the circumstances just means you look
at the facts.
c. Tips are given more leeway when they assert that a suspect has a gun. This is because of the
inherent danger in someone carrying a gun.
d. One test oft-cited from United States v Cortez asks for two elements.
i.
First, whether based on the totality of the circumstances, the activity that the officer
observes is consistent with behavior that officer has observed in the past to be
criminal.
1) Race should not be the sole factor in these considerations, although
sometimes it can be taken into account along with other factors. However,
even as far as consensual encounters are concerned, the 14th amendment
“imposes limits on an officer’s decision as to who to encounter, and also
imposes similar limits on an officer’s decision to track somebody before an
encounter.”
a) To show impermissible use of race, you have to show it is an
intentional choice.
2) Profiles: a list of characteristics compiled by a law enforcement agency,
which have been found through experience to be common characteristics of
those engaged in a certain type of criminal activity. Profiles are nothing
more than an administration tool of the police; they have no legal
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4.
5.
6.
7.
significance in the determination of reasonable suspicion. At the same time,
the fact that a characteristic is on a profile doesn’t preclude its use, as long
as there are other characteristics or it is otherwise justifiable.
a) Sokolow: the court allowed use of a drug-carrier profile.
b) Fleeing when seeing the police in a high crime area is not in and of
itself reasonable suspicion, but it can be a relevant factor—it might
be reasonable suspicion.
ii.
Second, the whole picture must yield a particularized suspicion that the person being
stopped is engaged in wrongdoing.
Comparison to probable cause:
a. Probable cause is a lesser standard of proof and the courts have applied it differently from
probable cause. Probable cause is needed to arrest someone, to take that person to jail, while
reasonable suspicion is like “possible cause” and it is enough to stop someone for questioning.
What about suspicion that a crime has already been committed?
a. The power granted by Terry may also be used to investigate completed crimes. United States v
Hensley. Based on the collective knowledge doctrine established in Whitely v Warden, the police
can have reasonable suspicion based on information given to them by other police that this
person committed a crime.
Stop vs. consensual encounter
a. The test asks whether a reasonable person would feel free to leave.
b. Any evidence found as a result of a consensual encounter can be used.
c. If a consensual encounter becomes a stop before there is reasonable suspicion, then any
evidence found is not admissible. Likewise, if a stop becomes an arrest before probable cause is
found, any evidence is not admissible.
d. No level of suspicion is needed for a consensual encounter.
e. All sorts of factors: the tone, the number of officers, the appearance of weapons can all make
someone feel they are not free to leave. If the officers are threatening.
f. There is no bright line of when a stop may end and a consensual encounter may begin—officers
do not have to inform that the stop is over and that the person is free to leave.
Stop vs. arrest – important b/c of difference in standard of knowledge
a. The first factor to consider in deciding whether a stop has become an arrest is forced
movement of the suspect to a custodial area.
i.
For example, in Royer, the police brought the suspect into a small interrogation room in
the airport.
ii.
Probable cause is required if the officer forces the suspect to move in order to
further the investigation or to place more pressure on the suspect. Some movement is
allowed for safety of officers if necessary.
b. Another factor might be forced movement for identification purposes.
i.
Many courts have found that if reasonable suspicion exist, it is permissible to
transport the suspect a short distance for purposes of identification by witnesses.
ii.
In People v. Hicks, the police were allowed to take the suspects to the scene of the
crime for identification purposes. The court held that since it only took 10 minutes, it
wasn’t a violation.
c. Investigative techniques that are permissible within the confines of a Terry stop. The police
are allowed to do some forms of investigation in order to determine whether criminal activity
has taken place.
i.
Preliminary investigation of the suspect’s identity; questioning concerning the
suspicious circumstances.
ii.
Verify the information obtained from the suspect by communicating with others or by
conducting preliminary investigations such as a vehicle registration check, license
check, or a computer search for outstanding warrants.
iii.
Detain for canine sniff.
d. Impermissible techniques
i.
Searches for evidence beyond reasonable fear-based.
ii.
Physical tests to determine whether suspect is intoxicated.
Milstead-Evans 10
iii.
Investigation of matters other than the reasonable suspicion which supported the stop:
1) An officer who stops someone for a traffic violation cannot continue the
stop in order to investigate for drug or gun crimes, in the absence of
reasonable suspicion to support such an independent inquiry. In other words,
a Terry stop cannot be used as an excuse for a fishing expedition.
2) United States v. Babwah, in which the police pulled him over to look for
drugs and then wanted to go to his house. The reasonable-suspicion should
be quickly dispelled or confirmed.
3) If there is reasonable suspicion for the other crime, then investigation is
okay.
iv.
They cannot take you to the station and /or fingerprint you unless they have probable
cause.
e. There is not set length of time. In United State v. Sharpe, the court allowed a 30-40 minute
stop. They also said, however, that the stop couldn’t last indefinitely before it became a de
facto arrest.
f. Drawn gun and handcuffs are okay for a Terry stop if they are reasonable for the safety of the
officer.
g. Detention of property under Terry
i.
Some detentions of property can occur on reasonable suspicion. For example, officers,
acting upon reasonable suspicion, detained a mailed package for more than a day, while
an investigation was made for purposes of developing probable cause and obtaining a
warrant. Since the investigation was accomplished promptly and diligently, it was
allowed.
h. The scope of a stop “must be temporary and last no longer than is necessary to effectuate the
purpose of the stop. . . .the investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion in a short period of time.
B. Frisks: okay on reasonable fear
1. A frisk cannot be used to search for evidence. They are justified only for protective purposes.
Minnesota v Dickerson. However, if the police immediately know that it is evidence of crime, then it is
okay to remove it, but if they do further investigation (based on reasonable suspicion it is evidence of
crime) then they overstep Terry.
2. Suspicion is required to support the right to frisk. A stop doesn’t automatically give a right to frisk.
People v. Russ.
3. Protective searches are allowed beyond the suspect’s person—the police can look through a car for
places where a weapon might be. Michigan v. Long. If you are stopped in your car when the police
develop reasonable fear, the police can search your person and your car.
a. This has been expanded to the area immediately surrounding the person and also to people who
are with the suspect, passengers in the car. It is not automatic that they may be able to search
companions, there still has to be reasonable suspicion.
b. Protective sweeps: the quick and limited search of the premises, incident to an arrest and
conducted to protect the safety of police officers or others is allowed and must be limited in
scope. Maryland v. Buie. Requirements are 1) reasonable belief based on2) specific and
articulable facts that another person who might be dangerous to the officer may be present in
the areas to be swept.
4. “Terry permits a limited examination of an area from which a person, who police reasonably believe is
dangerous, might gain immediate control of a weapon.”
5. Extensions of Terry.
a. Can officers order people out of the car pursuant to a routine traffic stop?
i.
Pennsylvania v. Mimms: the Court held that officers in the course of a legal stop of an
automobile have an automatic right under Terry to order the driver out of the vehicle.
The justification is that a stop is dangerous and that it increases safety for the
officer to have that justification.
ii.
An officer can also order a passenger out of a car, again based on her own suspicion and
the danger of a stop. Maryland v. Wilson.
Milstead-Evans 11
iii.
iv.
v.
vi.
X.
XI.
Additionally, courts reason that the intrusion of being ordered out of the car is limited
in addition to the stop.
They have also allowed officers to open a car door in the event that the windows are
tinted.
In New York v. Class the Court authorized a limited investigative entry into a car
during the course of a stop. The VIN number was obscured by some papers, and the
court reasoned that the VIN number was important enough for the police to get, and
the intrusiveness was small enough, that it was reasonable for them to remove the
papers. In the course of removing the papers, a gun was found.
1) Based on this case, the CA Supreme Court allowed officers to look under the
seat and around the backseat for the registration papers. Drugs were found.
Arturo.
In Michigan v. Summers, the Court held that when the police are executing a search
warrant, they can require the occupant to stay. This intrusion is limited in scope
compared to the search. This has been extended to non-residents as well.
Search Incident to valid arrest
A. The officers may search the area that is within the immediate control of the suspect, the area in which that
suspect might be able to get a hold of weapons. In Chimel v. California, it was not acceptable for the officers to
search the entire house. This area is referred to as the “grab area.”
B. Some possible gray areas:
1. Searching after the suspect has been taken out of the area he could have reasonably grabbed a
weapon from.
2. For example, in United States v. Lucas, the officers opened the cabinet that the suspect had reached
for and found a gun. The problem was that he had already been taken out of the room and could no
longer reach it at the time the search occurred. However, the suspect’s friends were still there and
uncuffed.
3. In Davis v. Robbs, the court upheld the seizure of a rifle that was taken after the suspect was in the
squad car. Courts construe the rule liberally. In United States v. Abdul-Saboor, the court determined
that the grab area should be determined as of the time of the arrest. The search should take place
soon after arrest.
4. Bringing the suspect to an area and then searching that area.
5. However, officers are allowed to maintain control over their arrestee, even as that person moves
around, and thus may enter a home, additional room, etc.
6. In Washington v. Chrisman, the officer followed the boy back to his dorm room, where the officer
found drugs. The observations in the room were held valid incident to the arrest. If the person moves
about, the officer is free to follow them.
C. While a search can precede an arrest, a search cannot be used to provide probable cause necessary to make the
arrest.
D. A search of the person made be made even after the arrest. United States v. Robinson, in which the Court
allowed the officer to seize heroin on the basis that not only was there a need to protect the officers, but also
to preserve evidence. The interest in privacy, is not lessened, however, just b/c someone is under arrest.
E. In United States v. Chadwick, the court upheld a search of the inside of a crumpled up cigarette package found
on the suspect’s person, allowing the search of containers, in a search incident to arrest. There is no need for
fear of danger in a search incident to an arrest.
F. You can be arrested for any crime, even a minor traffic violation. You can be searched incident to any arrest.
Atwater v. City of Lago Vista. If the officer decides to cite you instead of arrest you, you cannot be searched.
G. May search the passenger compartment of that person’s car and the contents of containers found in that car if
you are arrested in or by your car. Belton. There has been some criticism of this “bright-line” rule. There doesn’t
have to be any danger; the officer can search the entire passenger area, but it has to be in the same area and at
the same time.
Plain View and Plain Touch Searches
A. The item must be in plain view and its incriminating character immediately apparent. Horton v. California
1. Arizona v. Hicks, the illegality of the stereo wasn’t immediately apparent. It needed further
investigation, that is, the officer looking under it for a serial number. An officer must have probable
cause to seize an item in plain view during the course of legal activity. And that probable cause must
Milstead-Evans 12
XII.
XIII.
be readily apparent, meaning that probable cause must exist without the necessity of a further
search.
B. The officer must be lawfully located in a place from which the object can be plainly seen, and must also have a
lawful right of access to the object itself. If this element is not present, anything uncovered from plain view will
not be admissible.
C. Plain touch searches: If “a police officer lawfully pats down a suspect’s outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless
seizure would be justified by the same practical considerations there inhere in the plain view context.”
Minnesota v. Dickerson. In this case, however, the officer massaged the object to decide what it was, and the
further investigation was not acceptable.
Pretextual Stops and Arrests
A. Whren v. United States; the police stopped the car for a traffic violation b/c they suspected drugs. The court
said that if you are subject to arrest, it does not matter if there is a pretext.
Automobile Exception and Other Movable Objects (Be careful not to confuse with search incident to arrest).
A. Police may search an automobile without a warrant, so long as they have probable cause to believe it contains
evidence of criminal activity.
1. The original basis of this is the car’s mobility. Carroll v. United States. There was basically a twoprong test: 1) was there probable cause to believe that the automobile contained evidence? 2) Was
there an exigency requiring an immediate warrantless search?
2. Another rationale for allowing warrantless searches of cars is that the “expectation of privacy with
respect to one’s automobile is significantly less than that relating to one’s home or office.” California
v. Carney. This has become the sole basis for allowing warrantless searches of cars, and the Carroll
doctrine has become moot.
B. They can search anywhere where they have reason to believe that the evidence might be located. If you are
looking for stolen suitcases, you can’t look in the glove compartment, but otherwise, the entire car can be
searched.
C. They are not limited by time or geography.
D. One exception has been Coolidge, which did require a warrant b/c a warrant had been issued. This is the last case
in the which the court has required exigency. It is usually explained that it stands for the principle that the car
can’t be seized without a warrant unless there has been some exigency. But this case is an odd-ball and is usually
limited to its facts.
E. Mobile homes are subject to the same rules unless it’s clear that it is being used as a resident. Carney
F. The seizure of an automobile is also allowed upon probable cause (at least in the case where a Florida statute
G. onsidered the vehicle itself contraband).
H. If the automobile is in your garage, they will need appropriate authority to get into your garage—the normal
rules apply.
I. Other movable property / packages in your car:
1. Locked luggage, etc. doesn’t accompany with it the reduced expectation of privacy. Therefore, it
doesn’t fall within the exception. Seizure, on the other hand, is acceptable. United States v. Chadwick.
Therefore, they can seize a package based on probable cause, but then they have to get a warrant to
search it.
2. The police may search an automobile and the containers within it where they have probable cause to
believe contraband or evidence is contained. California v. Acevedo. The mere fact that they do have
probable cause to search the container doesn’t mean they can search the whole car. So the scope of
the search is still limited to what the police have probable cause to be looking for. But if they arrest
the person, then they can search the whole car incident to the arrest, but it has to happen right then
and there, not later.
3. When searching containers, the officers do not have to do it right there by the car. United States v.
Johns: although officers could have conducted warrantless search of packages at the scene they were
not required to do so and it was not unreasonable to remove the trucks from remote airstrip, place
the packages in storage and conduct search thereof three days later.
J. What about passengers’ belongings in a car? In Wyoming v. Houghton, the court found that “if probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.” “The critical element in a reasonable search is not that the
Milstead-Evans 13
owner of the property is suspected of crime but that there is reasonable cause to believe that the specific
things to be searched for and seized are located on the property to which entry is sought.”
1. The search of the person of passengers is not allowed incident to arrest. What is the person? It
includes your clothing, things in your pockets and things associated with the person. So if she had
taken the purse with her, in Houghten, the police would not have been able to search it, although the
court isn’t clear on this since they don’t really address it.
XIV. Exigent Circumstances
A. “The exigent circumstances cases concern fact-specific situations in which the state must show that immediate
action was reasonably necessary to prevent flight, or to safeguard the police or public, or to protect against the
loss of evidence.” In these cases, the officer had probable cause, but no time or insufficient time to seek a
warrant. There must also be probable cause as to the danger.
B. The exigent circumstances exception applies equally to arrests and to searches.
C. Hot pursuit:
1. If officer are in hot pursuit of a suspect, this will excuse an arrest warrant where one would
otherwise be required, and it will also excuse a search warrant where a search of an area must be
conducted in order to find and apprehend the suspect. It is unrealistic to expect police officers to
stop in the middle of a chase and resort to the warrant process.
2. Warden v. Hayden: the officers chased a man into his house and found incriminating clothes in the
washing machine. They were allowed to keep the clothing even though they were actually looking for
weapons. The clothing fell under the plain view exception at that point.
3. The hot pursuit doctrine cannot apply when the suspect does not know that she is being pursued.
Welsh v. Wisconsin.
D. Police and Public Safety
1. A warrant is excused if the delay in obtaining a warrant would result n a significant risk of harm to
the police or to member of the public. For example, the officers in the OJ Simpson case claimed to be
concerned about his safety when they jumped his fence because of his celebrity status. The exigency
is determined not in hindsight, but from the time of the situation.
E. The risk of destruction of evidence
1. If evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is
excused. The question usually disputed in the cases is whether there was really an imminent risk of
destruction of evidence under the facts presented.
2. Factors to be considered:
a. The gravity or violent nature of the offense with which the suspect is to be charged.
i.
There is no automatic warrant exception, however, for even murders. They still have to
show exigency.
ii.
If is difficult for “conceive of a warrantless home arrest that would not be
unreasonable under the Fourth Amendment when the underlying offense is extremely
minor.” For example, a DUI.
b. Whether the suspect is reasonably believed to be armed
c. A clear showing of probable cause to believe the suspect committed the crime
d. Strong reason to believe that the suspect is in the premises being entered
e. A likelihood that the suspect will escape if not swiftly apprehended
f. The peaceful circumstances of the entry.
XV. Special Needs Searches (Administrative Searches)
A. Roadblocks and Suspicionless Seizures
1. In Delaware v. Prouse, the Court held that an officer could not, in the absence of suspicion, stop an
automobile and detain the driver in order to check his license and registration. They did hold,
however, that it was permissible to set up rood blocks and check everybody in the absence of
suspicion.
2. Permanent checkpoints are also allowed: the court reasoned that the state interest in regulating the
borders justified the minimal intrusion. Additionally, they held that it was not an exercise in officer
discretion (which they try to avoid) because the places for the stops were chosen by officials.
Additionally, there was no element of surprise if the people coming through knew it was going to be
there because it is permanent.
Milstead-Evans 14
a.
If after going through the checkpoint, if the police want the person to pull over, they must have
reasonable suspicion. If they wanted to search, they would have to have probable cause.
3. Temporary checkpoints have also been upheld. For example, in Michigan Dep’t of State Police v. Sitz,
the police set up a checkpoint to check for intoxication, a compelling enough state interest to justify
the minimal intrusion.
a. This does not allow pretextual checkpoints, such as the one in Hegenin, where the police set up
a ruse and did not have any real purpose besides searching for drugs.
B. Suspicionless searches
1. Inventory searches: the purpose of inventorying the car or belongings is not to uncover evidence of
criminal activity, but to protect the police against claims of lost or stolen items and to protect the
owner’s property while it is in police custody.
a. Community caretaking function: the concept, as opposed to looking for evidence of criminal
activity, that some searches are done for the benefit of the owner.
b. Opperman: in this case, the court held up a rountine inventory search of a car that had been
impounded.
i.
Three interests supported by the inventory searches, under Opperman: 1) protection of
the police department from false property claims; 2) protection of the property
interests of the owner; and 3) protection of the police and public from dangerous
items.
c. These searches do have to be regulated by police procedures. In Florida v. Wells, the court did
not uphold a search and inventory of a locked suitcase when the police had no such procedure in
place. In Colorado v. Bertine, the defendant was pulled over and arrested, and the police had to
make the decision of whether to impound the car and search it, impound it and seal it, or leave
it locked in a public parking lot. The police searched the car from the impound lot as part of an
“inventory search.” During the process of this search, they found a nylon backpack which had
drugs and drug paraphernalia in it. The defendant argued that it was unconstitutional for the
police to have discretion as to what they would do with the car and therefore to conduct the
search. The court ruled, however, that police discretion is permitted “so long as that discretion
is exercised according to standard criteria and on the basis of something other than suspicion
of criminal activity.”
d. The searches do have to relate to the justification of protection of property: therefore, they
cannot search the fibers of the floorboard or crumbs on the floor.
2. Border Searches
a. Border searches serve a special need beyond traditional criminal law enforcement. The special
need is the interest in protecting American borders, “in order to regulate the collection of
duties and to prevent the introduction of contraband into this country.”
b. Searches of first class international mail have also been upheld under the same rationale.
c. There needn’t be a warrant or any level of suspicion for routine border searches.
d. Non-routine searches must be supported by reasonable suspicion. Some body searches are
routine, and others aren’t. Whether or not a body search is routine is determined by
considering the following factors:
i.
Whether the search results in the exposure of intimate body parts or requires the
suspect to disrobe;
ii.
Whether physical contact between Customs officials and the suspect occurs during the
search
iii.
Whether force is used to effect the search
iv.
Whether the type of search exposes the suspect to pain or danger
v.
The overall manner in which the search is conducted; and
vi.
Whether the suspect’s reasonable expectation of privacy, if any, are abrogated by the
search.
e. They have also been allowed for people leaving the country.
f. With border searches, if you have reasonable suspicion for a non-routine search, there is no
time limit for how long the person can be held. This is different from stops which eventually
become arrests.
g. Opening of containers is routine.
Milstead-Evans 15
h.
XVI. Consent
A.
B.
C.
D.
E.
F.
G.
H.
I.
For non-routine searches with reasonable suspicion, where they can look is affected by what
they are looking for. They can’t do a body search for something that is probably not on your
person.
i. The border area in which someone can be searched extends to 100 miles into the country. The
extended border only applies to the first place you land.
Searches: in order for a consent to be valid, the police had to have had a right to be there to begin with.
Voluntary consent: the question whether a consent to a search was in fact voluntary or was the product of
duress or coercion, express or implied, is a question of fact to be determined from the totality of the
circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the
government need not establish such knowledge as the sine qua non of an effective consent.” There is no
requirement that the police give you warnings that you may not consent if you choose. The question is whether
the consent was voluntary. That is the key to a valid consent. Use the facts to determine this.
Refusal of consent is not the basis for reasonable suspicion or probable cause. You are free not to give consent
and it cannot be held against you.
The burden is on the gov’t to prove there was consent.
Mere acquiescence or silence is not enough. In Mendenhall, the police asked a woman to go with them to a little
room in the airport. She eventually consented to their searching her luggage. She never actually said it was okay
to go with them to the room, but she did just go. The court ruled that this was more than mere acquiescence.
Anything other than silence may be enough: silence plus following or silence plus a gesture of openness towards
them looking in your luggage.
The court may require a higher level of consent after you’ve been arrested, but you can consent at arrest, stop,
consensual encounter. Whether you consent with reasonable suspicion or probable cause, it is valid, but if you
consent during an illegal stop or arrest, then the consent is not valid.
Threats of getting search warrants aren’t enough to invalidate consent, but actual lies about whether they had a
warrant or had reasonable grounds to get a warrant does invalidate consent. If the police have grounds to get a
warrant, then consent is valid, if they don’t, then it isn’t.
Threats of taking the children away things like that, invalidate consent.
The standard for consent is the same even if someone has had a background that would make them more likely to
feel intimidated by the police. For example, a man from Mexico who has had very negative experiences with the
police may not feel comfortable refusing consent: one’s subjective feelings however, are not part of the calculus.
A third party can consent to the search of an area in which a suspect has an expectation of privacy. For
example, in Frazier v. Cupp, the court upheld the search of a defendant’s duffle bag when his cousin, a joint user
of the bag, voluntarily consented.
1. Authority to consent: the court held in United States v. Matlock that authority to consent to a
search does not depend on a legal property interest, but on “mutual use of the property by persons
generally having joint access or control for most purposes.” In this case, Matlock was arrested in the
front yard of a house. Mrs. Graff admitted the police to the house and told them she shard the house
with Matlock. She consented to a search. The court emphasizes the idea that when there is joint
access and control, the party assumes the risk that someone else might consent to the search.
2. Apparent authority: an officer’s reasonable belief that the third party has authority to consent will
validate the entry. The officers cannot be “willfully blind” as to whether that person in fact has
authority.
a. In Illinois v. Rodriguez, the girlfriend had moved out, but still had a key. She allowed the police
to search the boyfriend’s home. The police didn’t know that, so they had reason to think that
she had authority.
3. If there is actual authority, but one party tells the other not to let anyone search it, that doesn’t
eviscerate the authority and hence the ability to consent.
4. The “government’s burden of proving valid consent cannot be met if agents, faced with an ambiguous
situation, nevertheless proceed without making further inquiry.” There is some need to do further
investigation when the situation is ambiguous.
5. Family members: Courts generally allow parents with control over entire premises to consent to the
search of the entire house, even a minor’s bedroom. Consent will not be valid if it is clear that part of
the premises is exclusively reserved for a child. Minors have authority to permit the search of a
residence. (although probably only the common areas—not the whole house and certainly not their
parents’ bedroom). The age of the child may be important in determining what they can consent to.
Milstead-Evans 16
Spouses are generally presumed to have authority to consent to the search of a premises jointly
occupied by both spouses. There are situations in which spouses won’t have authority to allow search
of the whole premises. In these circumstances, it is up to the non-consenting spouse to overcome a
presumption of joint control by showing that the consenting spouse was denied access to the
particular area searched.
J. A search beyond the scope of consent cannot be justified as a consent search. For example, after the suspect
consented to a search of his person, the officers felt his groin region. This was held to be beyond the scope of
consent: “if cannot be said that a reasonable individual would understand that a search of one’s person would
entail an officer touching his or her genitals.” The scope of consent is determined by a standard of objective
reasonableness.
K. It is up to the citizen rather than the officer to clarify any ambiguity concerning the scope of consent.
L. Withdrawing consent:
1. Cannot be revoked after officer has found incriminating evidence.
2. Revocation of consent must be clear and explicit.
3. “The constitutional right to withdraw one’s consent would be of little value if the very fact of choosing
to exercise that right could serve as any part of the basis for finding the reasonable suspicion that
makes consent unnecessary.” Withdrawing can’t be used as evidence for the purposes of establishing
suspicion.
XVII. Administrative / regulatory Searches and private drug testing
A. Housing inspections: the housing inspector can get a certain type of warrant and look for violations of the
housing code—it has a non-criminal purpose. However, if they have a right to be in your house, any evidence of
crime that they observe can be used against you.
1. The court’s initial approach is in Camara. They required a warrant for housing inspections, but a type
of probable cause different from what we’ve been used. It could be issued on the needs of the area.
They are often referred to as area warrants. For example, the particular neighborhood could look like
it is in disrepair.
B. Businesses: the court applied basically applied the Camara approach. Some type of warrant is required, but may
be broader or less specific. However, with regard to businesses, warrants are not required for all—there are
some areas of a business that are public. The police have a right to go into public areas as much as anyone. There
is no warrant requirement for police to go into public areas, but private areas require regulatory warrants. Also,
there is a category of businesses that are “heavily regulated.” This type of business doesn’t require any warrant
or level of suspicion. What are heavily regulated businesses? 1) any business selling guns; 2) any business selling
alcoholic beverages; 3) nuclear energy; 4) automobile junkyards. Factors: First, the kind of businesses which are
heavily regulated. Second, businesses in which surprise inspections are needed to make sure there is full
compliance with regulations; third, the regulations themselves provide some of the limitations of the searches.
The key case is terms of this exception is the Burger case (p. 354). The police are looking for evidence of a
stolen automobile in a junk yard. In this case, it is actual police officers looking for violations and the violations
are used in a criminal case.
C. Special Needs
1. School searches
a. Public schools (not universities) have a standard of reasonable suspicion by school officials.
2. Prisons
a. Prisoners have no personal privacy in their cells, but with regard to the person, any search must
be reasonably connected with correctional goals.
3. Gov’t offices:
a. The standard is that the search must be reasonable under all the circumstances.
4. Searches of people on probation
a. The court has said that people on probation for past convictions are subject to search by their
probation officer based on reasonable suspicion. This includes person, home, private property.
D. Drug testing of gov’t employees
1. There is some suspicionless drug testing for government employees. There are no standards for
private entities because the constitution doesn’t apply to private persons. The gov’t does require it
with regard to particular individuals. For instance, all federal employees who had been involved in a
train accident because of the governmental interest in determining the cause of the accident. There
Milstead-Evans 17
was no suspicion requirement. The interest in determining the cause justified the warrantless,
suspicionless search.
a. Customs people who did one of three things 1) carried a gun; 2) involved in drug interdiction.
Warrantless, suspicionless random drug testing.
E. High school athletes
1. The court has upheld suspicionless, warrantless random drug testing of high school athletes since they
have a low expectation of privacy and the need to conduct athletics in a fair way is justified.
2. Some courts, although not most, allow the drug testing for students involved in extracurricular
activity generally.
3. A few courts have held teachers to drug testing.
F. Politicians: have to certify that they have gone to a doctor and are drug-free. The court held that that
requirement of drug testing required a warrant. Whatever.
G. A number of states require that anyone arrested for a sexual offense be tested for the HIV virus. During this
time, they may also search for evidence of drug use. Lower courts agree that HIV testing for person arrested
or convicted of sexually related offenses is legal. They have struck down drug testing for indigent women giving
birth.
H. Wire-tap
1. The problem with wire-taps is that while they may have probable cause to search one side of the
conversation, they don’t for the other side.
2. These problems have been addressed by the Omnibus Crime Control Act of 1968. It applies to any
electronic communications. The basics: 1) the attorney general or assistant attorney general must
approve the request for a wire tap. It must be some high level official; 2) the judge must decide
there is probable cause to believe there is a particular communication that can be seized that will have
evidence of crime; 3) there must also be a finding that normal investigative techniques will not work;
4) there must also be a finding of probable cause to believe that a particular communicating device will
be used.
3. Since the war on terror, they have broadened the type of device that can be tapped.
4. The warrant must describe with particularity the identity of the person, the nature and location of
the communication device and the period of time the conversations are to be seized. Can only be
approved up to 30 days.
5. There are exigency exceptions: if they have evidence someone’s life is in danger, etc. and a wiretap is
necessary, but there is no time, there is an exigency exception.
6. The warrant approves the covert entry to insert the listening device as well.
7. It does not cover seizure of conversations to which one party has consented b/c it isn’t a search.
However, many states have laws that are more restrictive. Some states have laws that prohibit the
electronic seizure of a conversations without everyone’s knowledge.
a. This also means that undercover agents, bugged or not, are not conducting searches. These
undercover agents consent, as parties to the conversation, to the bugging.
XVIII. Exclusionary rule
A. Violations of the 4th and 5th amendments lead to the exclusion of evidence at trial.
B. Mapp v. Ohio: the exclusionary rule also applies to the states.
C. Illegal searches, that is, those that violate state or federal law but not the Constitution are not subject to the
exclusionary rule. Whether exclusion will occur in state court is a matter of state law.
D. Motion to suppress (or return of the property): are normally made before the trial starts. The defense knows
of the kind of evidence and therefore will make the motion ahead of time. It is possible that the motion to
suppress can come later as additional evidence comes out about the seizure. The reason to make it pre-trial is 1)
so the trial can move forward more smoothly; they have to be made outside the presence of the jury; 2) if
various evidence is excluded, then the prosecution may decide not to go forward with the case. This avoids the
attachment of jeopardy. Any decisions made about the trial going forward or not, if made before the jury is
impaneled, don’t involve jeopardy.
E. Franks v. Delaware: involves a challenge to the oath or affirmation that led to the search warrant. If the police
officer alleges information sufficient for probable cause, but the assertion is that the police officer lied, then
there “must be allegation of deliberate falsehood or of reckless disregard for the truth, and point out
specifically the portion of the warrant affidavit that is claimed to be false, and they should be accompanied by a
Milstead-Evans 18
statement of supporting reasons.” In this case, the court has to have a brief hearing, called a Franks hearing,
to determine whether the officer did in fact.
1. Two cautions: 1) it must be the police officer who lied (not his or her informant); 2) if you can strike
out the officer’s statement and still have probable cause, there is no basis for a Franks hearing—the
falsehood must be material.
2. The police do not have to reveal the names of informants. Informants only have to be revealed if they
are used in the trial itself. However, if you can allege enough information that shows the officer has
lied about what the informant has told him or her, then the court might make the officer reveal the
identity of informants.
F. The burden of the proof is on the gov’t by a preponderance of the evidence to justify a search without a
warrant.
G. Simmons: in order to protect a Δ from incriminating himself, anything said at a suppression hearing that is
incriminating cannot be used at the trial itself. It is immunized. It may be used to impeach the Δ if he testifies
at trial. One qualification is that it doesn’t apply to witnesses in the trial. The immunity for testimony is only
for the Δ. If the Δ is trying to show the luggage is his and his best friend comes forward as a witness, that
witness cannot testify otherwise at trial.
H. Standard of review: If there is a substantial basis for upholding the trial court’s decision, it should be upheld.
I. Standing to invoke the exclusionary rule: The standing requirement provides that a defendant cannot obtain
exclusion of evidence unless his own personal Fourth Amendment rights are violated.
1. Reasonable Expectation of Privacy: Standing questions are resolved by determining whether a
person has a legitimate expectation of privacy in the area or thing that was searched, or a legitimate
Is there any tension
possessory interest in the thing seized.
between claiming
someone doesn’t have
a. Burden on Defendant: The defendant bears the burden of proving that he had a legitimate
a privacy interest and
expectation that was violated by the challenged search and seizure.
actually connecting
b. For example, in Rawlings v. Kentucky, the Δ had no right to object to the search of a purse
that person with the
which was not his. Ownership of the evidence is not enough when he has no legitimate
evidence? As in Rakas
expectation of privacy in the area that was searched.
v. Illinois? Car not
c.
Don’t confuse this with the use of “reasonable expectation of privacy” in order to determine
theirs, claim evidence
whether there was a search.
isn’t theirs. If the car
2. Possessory Interest in Items Seized Is Insufficient. A defendant does not automatically have
isn’t theirs why are
the drugs theirs?
standing to contest the search of an area merely because the items seized are owned by the
defendant. However, he generally does have a right to object to the seizure of such property, even if
it is being held by a third party. A seizure would implicate a suspect's personal Fourth Amendment
possessory interest in the item seized.
3. Disassociation With the Object of the Search: Where a defendant disavows any knowledge of or
interest in property that is being searched or seized, such an action is inconsistent with a reasonable
expectation of privacy, and the defendant will not have standing to object to the police activity.
4. Co-conspirator Status: The mere fact that a search or seizure has occurred with respect to
property controlled by a conspiracy does not mean that each co-conspirator has standing to object.
There is no joint venture exception to the principle that standing is dependent on a violation of one's
own personal Fourth Amendment rights.
J. “Fruits of the poisonous tree”
1. Generally speaking, evidence that is obtained as a result of an illegal search or seizure cannot be
admitted at trial, even if it was not obtained in the course of the 4th amendment violation. The
exclusionary rule applies to directly found and indirectly found evidence. In deciding whether or not
to admit the evidence, the courts must consider whether there is a sufficient causal relationship
between the violation and the discovery of the evidence. In order to get the evidence admitted,
there has to be some clear break in the chain (attenuation of the taint): the burden rests on the
prosecution.
a. Reading of Miranda warnings and voluntary decision to confess do not attenuate the taint.
b. Brown v. Illinois; the reading of Miranda rights is not sufficient to break the chain. Factors to
consider: the temporal proximity, the presence of intervening circumstances, flagrancy of
police conduct.
c. Wong Sun: a victim of an illegal arrest, Toy, gives up Johnny Yee (also illegally arrested), who
gives up Sea Dog (Wong Sun). J. Yee provides incriminating information about Toy and Sea Dog.
Milstead-Evans 19
The question is whether the information given by J. Yee can be used against Toy. The court
found that Yee’s statements were the result of the statements made by Toy, which were
illegally obtained. With regard to Yee’s testimony against Sea Dog, Sea Dog didn’t have
standing. Sea Dog is illegally arrested though. He is released and 3 days later, he confesses.
Is the confession fruit of the poisonous tree? The court found that there wasn’t enough
connection between the confession and the arrest. His confession was an exercise of his own
free will. The 3 day period is called “attenuation of the taint.”
d. In determining whether the evidence is admissible, the test isn’t unlike that of proximate
cause. Factors to consider:
i.
The time period between the illegality and the acquisition of the secondary evidence.
ii.
The occurrence of intervening events.
iii.
The flagrancy of the initial illegality.
e. New York v. Harris: there was the illegal arrest in the home, from which no statements could
be used. After the suspect was out of his house, when there was probable cause to arrest, any
statements made against him can be used. Apparently, the illegal (warrantless) arrest in the
home didn’t taint the arrest made on probable cause. The purpose of the arrest warrant
requirement for in-home arrests is to protect the home, not the person.
f. Live witnesses: “the exclusionary rule should be invoked with much greater reluctance where
the claim is based on a causal relationship between a constitutional violation and the discovery
of a live witness than when a similar claim is advanced to support suppression of an inanimate
object.” Willingness from the witness may break the causal chain as well. However, if the
witness is closely connected with the violation, the testimony will be excluded.
g. Relationship with standing requirement: if the defendant is subject to an illegal search or
seizure, and evidence is thereafter obtained in subsequent search or seizure, the defendant can
argue that this evidence is fruit of the poisonous tree even though he has no right to object to
the subsequent intrusion.
h. If there is an invalid stop (w/o reasonable suspicion), anything found in plain view is excluded as
fruit of a poisonous tree. If there is voluntary consent as a result of a stop, anything that is
found is fruit of the poisonous tree—the consent is invalid. If there is an invalid arrest, any
evidence procured in plain view or consent or from a search incident to arrest is excluded as
fruit of the poisonous tree.
2. Independent source: The 4th amendment allows “the introduction of evidence discovered initially
during an unlawful search if the evidence is discovered later through a source that is untainted by the
initial illegality. “ In other words, if the police discover evidence illegally, if they also discover the
same evidence legally, then they get to keep it.
a. Segura v. United States: police found the evidence illegally while waiting for a warrant that was
in the process of being issued. After the warrant finally showed up, they argue that they would
have found the same evidence with the legally obtained warrant.
b. The illegally obtained evidence can have neither an effect on the officer’s decision to seek a
warrant or on the magistrate’s decision to issue one. In Murray v. United States, the officers
did not tell the magistrate about seeing the marijuana before-hand, so it didn’t affect the
issuance of a warrant. However, they might have been prompted to seek the warrant because
of their observations in the warehouse. Therefore, the source wasn’t necessarily independent.
c. “A search warrant procured in part on the basis of illegally obtained information will still
support a search if the untainted information supporting the warrant, considered alone, is
sufficient to establish probable cause.
d. The police cannot begin an illegal search / seizure all on the basis that a warrant is forthcoming.
Madrid. In this case, the police did a full out search while waiting for a warrant, which is
different from in Murray or Segura where they secured the premises.
K. Inevitable discovery: different from independent source because it is hypothetical. The evidence would have
been found.
1. If the officers inevitably would have found the evidence anyway, then it is not excluded. An example
would be that Picket Fences episode where the Δ told them where the body was and they found it, but
they would not have stopped looking and were already looking in the correct place. (This is Brewer v.
Williams, discussed, infra, under deliberate elicitation of statements in violation of 6th amendment).
Milstead-Evans 20
2. This doesn’t mean police can claim they would have inevitably gotten a warrant since they had probable
cause to search, since this would completely destroy the warrant requirement. Some lower courts
have said that inventory searches cannot be used to claim inevitable discovery.
3. Do not assume that there are inventory searches unless the facts tell you that. Not every police dep’t
does inventory searches. Not every inventory search is legal, either.
4. Proving inevitability
a. Gov’t must prove inevitability by a preponderance of the evidence.
b. In determining inevitability, the focus must be on what officers would have done, not on what
they could have done. For example, in Allen, the officer claimed she would have had a drug dog
sniff if she hadn’t conducted the illegal search, and the court found this was too speculative,
since she had never had the dog sniff before and it wasn’t customary to have dog sniffs in a
situation such as that one.
c. A few courts have held that in order to invoke the inevitable discovery exception, the police
must be actively pursuing the lawful means at the time the illegal search is conducted.
L. Use of illegally obtained evidence for impeachment purposes
1. The exclusionary rule cannot be used as a license for perjury. Therefore, prosecutors may use it to
impeach witnesses who “open the door” by denying the existence of such evidence on the witness
stand. This is true whether the testimony is on direct or cross-examination.
2. The exception doesn’t extend to impeachment of defense witnesses.
M. Good Faith
1. There is a limited, narrow exception that allows the admission of evidence that was obtained in good
faith based on a warrant that was ultimately determined to be faulty. United States v. Leon.
a. There must be a mistaken magistrate’s decision (in finding probable cause—this is difficult to
meet because if there was some basis for probable cause, the appeals court will usually respect
Keep in mind that the
the magistrate’s ruling; there must be no basis) and reasonable police reliance on the
purpose of the
magistrate’s mistake (this is difficult to meet b/c if there is obviously no probable cause, then
exclusionary rule is
the police would know that). It will apply only to very borderline situations.
deterrence. There is
b. Reasoning in Leon: First, that admission of evidence is not a Fourth Amendment violation—by
no deterrence unless
the time admissibility questions arise, the violation has already occurred. The Fourth
the misconduct is
Amendment does not require in all circumstances (or any, really) the exclusion of illegally
knowing and voluntary.
obtained evidence. Second, there are social costs to the exclusionary rule in the form of guilty
people being set free. Third, judicial magistrates will not be deterred from error by excluding
evidence based on their mistakes, since they do not have a stake in convictions. Fourth, without
police illegality, there is nothing to deter. So when the reliance on the warrant was “objectively
reasonable,” the evidence can still be included, although there are situations in which the
officer would not have reasonable grounds to rely on a warrant, such as when the officer knew
the information contained in her affidavit was false or acted with disregard as to its falsity,
knew the magistrate was acting improperly, knew that true facts didn’t add up to probable
cause, or knew that the warrant wasn’t particular enough.
c. Applies if the magistrate messes up the probable cause requirement or the particularity
requirement.
2.
So
long
as there is room for argument as to the reasonableness of the reliance on the warrant, the
The rationale behind
good
faith
exception will apply.
the exceptions to the
3. Warrantless searches (other third party mistakes).
exclusionary rule is
that the purpose of
a. If officers rely on a law that is subsequently found to be unconstitutional, the good faith
the rule is to deter
exception will apply. The officers must reasonably believe that the law is constitutional.
police misconduct:
b. The same has been found to apply to computer errors—such as a failure to remove an arrest
misconduct should not
warrant from the computer, in Arizona v. Evans. The rationale is that court clerks do not have
place them in a better
any reason to promulgate the mistake, and officers cannot be deterred if it isn’t their fault to
position, but neither
begin with.
should it place them in
c. The good faith exception will not apply to mistakes of other police (the collective knowledge
a worse.
rule). Police are allowed to make reasonable mistakes of fact, but not law. For example, in the
case where the police reasonably believed there was only one apartment on the third floor when
there was two.
N. Other purposes for which illegally obtained evidence can be used
Milstead-Evans 21
XIX.
1. Grand jury indictment: confidential hearing to decide whether charges can go forward. It would be
risky to get an indictment based on illegally seized evidence since it would not reflect what would
happen at trial. However, it may be good if it is important to hold someone while a case develops.
Illegally obtained evidence cannot be used at preliminary hearings.
2. Civil proceedings are not subject to the exclusionary rule.
a. Juvenile delinquency cases are technically civil cases. However, illegally obtained evidence
cannot be used against juveniles in these cases.
b. Civil forfeiture proceedings are also subject to the exclusionary rule.
3. Civil deportation proceedings
4. Child protective cases
5. Sentencing phase after conviction
6. Parole revocation hearing—they can’t convict you of the new crime, but they can revoke parole and
reinstate the prison sentence from the previous crime.
7. Habeus corpus: another way to attack your conviction, besides through criminal appeals. Instead, it is
a civil remedy. Habeus corpus means “let my body go.” You claim to federal courts you are being held
in violation of your civil / constitutional rights by the state courts.
a. Any issue raised on direct appeal can be raised a second time in civil habeus petitions, with a
few exceptions.
b. Stone v. Powell ruled that you cannot litigate 4th amend. exclusionary rule issues on habeus
corpus. The rationale was that the purpose of habeus corpus review was to make sure innocent
people weren’t imprisoned—excluded evidence doesn’t go to guilt or innocence. In fact, it goes
to guilt.
c. You can only litigate by habeus petition clearly established constitutional rights, not new rights.
d. You now have to file your habeus petition within a year of your direct appeals being filed (an
state court decisions becoming final).
e. All possible arguments have to be brought together—can no longer litigate each habeus issue
separately.
Fifth Amendment: in order for it to apply you must have both 1) criminal case (or civil case/proceeding where it is later
used in criminal case); 2) compulsion.
A. Waiver and immunity
1. Grant of use and derivative use immunity allows state to compel testimony. The police have to agree
not to use any statement you make or any information contained in your statement to convict you. You
are not required to be given transactional immunity: you can still be prosecuted for the crime—they
just can’t use the information you give as evidence.
2. Waiver of Fifth Amendment and testimony: after a Δ begins to testify on her own behalf, she has
waived her fifth amendment immunity. You cannot testify as to a limited portion of your behavior
without waiving your right to any related matter.
3. When one pleads guilty to an offense, he waives his fifth amendment immunity and can be required to
answer questions about the details. However, some people when they plead guilty reserve the right to
maintain immunity for the sentencing phase.
4. If you raise insanity issues as part of your defense ,then the prosecution has a right to undertake its
own psychological exams. In examining you, any information that is gathered can be used against you.
B. “Criminal Cases”
1. Applies in “criminal cases,” but this is extended to any proceeding in which one may implicate oneself,
where there is the possibility of future criminal prosecution or criminal-like penalties.
2. Fifth amendment does not apply to fear of foreign prosecution. The analysis might be different if
the U.S. is cooperating with another government.
3. With regard to civil proceedings, the fifth amendment has to be claimed or it is lost. It is automatic
with regard to Δs in criminal cases.
4. Detention for “treatment:” those offenders who have dangerous propensities being held civilly b/c of
their mental condition. The State has upheld these proceedings even though there is not treatment
for the condition and the person is confined the same way they were while in prison. The sex
offender has to appear before the proceeding and answer questions about whether or not they are in
danger of committing future sex crimes. Does this violate the fifth amendment? They’ve decided it
Milstead-Evans 22
doesn’t because it is a civil proceeding. There is no danger of his being criminally convicted b/c he’s
already been convicted.
5. Even in civil cases where the rights of criminal Δs don’t apply, you do have the right to due process,
where the fifth amendment may apply. This has been the case with juvenile delinquency proceedings.
C. Compulsion
1. Use of contempt power—a witness cannot be held in contempt for refusing to testify if testifying
would incriminate. With contempt, you can be held in jail until you testify. This is the primary form
of compulsion.
2. Other state-imposed sanctions:
a. Lefkowitz v. Turley: they were compelled to testify by threatening loss of future contracts.
This case cites Garrity, the police officer case, in which loss of employment was at risk. The
State cannot compel testimony without immunity by threatening loss of something substantial,
like a job.
b. Threat of disbarment is also illegitimate compulsion. Spevak.
c. Conditioning of social services is okay. Denial of benefits is okay—such as a denial of a lighter
sentence for failure to incriminate. No compulsion exists.
i.
You are not entitled to federal financial aid unless you fill out a form that says you
have registered for the draft. Selective Service System. They argued that the denial
of aid was a penalty and therefore compulsion. However, the court found that it didn’t
apply b/c you are not compelled to fill out the form. You just aren’t eligible for
financial aid.
3. If immunity is given from criminal prosecution, it is okay to compel testimony with threat of loss of
job or to fire after the testimony. In other words, you can have compulsion without the fifth applying
b/c the testimony will only be used in civil proceedings.
D. Comment on the Invocation of the Privilege
1. A adverse comment to the jury regarding the Δ’s failure to testify is not permitted. The Griffin rule.
Δ’s are also entitled to a jury instruction not to make any adverse deductions based on refusal to
testify. The Δ can’t insist that there is no instruction—if the judge wants to make the instruction,
she can.
2. If the Δ attorney says, “We didn’t get his side of the Δ’s story,” the prosecution can answer that.
3. What about the prosecution saying, “Our case is uncontradicted?” Is this commenting on the Δ’s
silence or on the evidence? Some courts have said it is a comment on the evidence, others have said
that it is on the lack of testimony if it is the sort of crime that only the Δ would know about.
4. A Δ’s refusal to testify at his first trial may be used against him in a second trial. (As a kind of
impeachment—why testify now? Hmmm?)
5. There cannot be an adverse inference in the sentencing process either.
6. The Fifth amendment does not forbid inferences against parties to civil actions when they refuse to
testify in response to probative evidence offered against them.
E. Disclosure / production of documents: incriminating documents are generally not protected by the 5th amend.
1. When the documents are in the hands of others, except your attorney, they are not protected by the
5th amend.
a. For example, your accountant could have incriminating documents, and be forced to turn them
over against you, because only you can assert your fifth amendment rights. The one exception
is documents in the hands of your attorney, which flows from the 6th amendment right to
counsel, not the fifth amendment. If the documents would have been protected by the 5th
amendment if in the hands of the taxpayer, then they are protected in the hands of your
attorney. Fisher.
2. Voluntarily prepared documents are not protected, but the act of producing them may be. Most
documents are voluntarily prepared. Fisher.
a. Fisher involved business documents. Are personal documents (i.e. diaries) protected? Most
lower courts do not protect all types of documents. Sen. Packwood had to turn over his diary,
for instance.
Milstead-Evans 23
b.
The act of production: If the Δ’s 1) knowledge that the documents exist; 2) control of the
documents; 3) ability to authenticate is incriminating, the act of production may be
incriminating and be considered testimonial.
i.
Tax records are not protected by the act of production.
ii.
The production of a rough draft of a ransom note could be protected in that control
and knowledge of its existence is incriminating. The note itself is not protected.
iii.
Utility records: knowing you have utility records and having them in your control is not
incriminating.
iv.
If you own a video store and are illegally selling pornographic videos, production could
or could not be incriminating. If you have a separate inventory list of the porn, then is
would be.
v.
Knowledge that a bloody knife exists and having it within your control is incriminating.
vi.
A doctor who was prescribing too many Quaaludes:; the number of files showing his
prescriptions was incriminating.
vii.
If it is a foregone conclusion that the actor would have the documents (b/c everyone
has them, for instance) the production is not incriminating.
viii.
A second set of books may be incriminating.
c. Baltimore City Dep’t of Social Services v. Bouknight: the mother in temporary custody of her
daughter did not want to produce her to give her back to social services. She claimed that the
act of producing her violates her Fifth Amendment rights since it is obvious that something has
happened to the little girl. The court found that it did not violate the Fifth Amendment
because 1) her custody of the child is like the relationship b/wn the custodian and the
collective entity—she was an extension of the court system; 2) the control over the child was
for administrative reasons, not for criminal reasons.
d. Hit and run accidents: to stop and admit you were involved in the accident, maybe when you
are intoxicated. The courts have found that this was just for administrative purposes—to give
your name and insurance, etc. and was not for criminal law.
3. Required records for administrative purposes are not protected.
a. If the documents are valid for non-criminal reasons, they are not protected.
b. Documents required for criminal law purposes are protected when they are in the hands of the
suspect (or attorney) and the suspect is not a collective entity.
4. Collective entities are not protected by the 5th amendment in any way. There is no protection under
the 5th amend. for documents prepared by a collective entity (corporation or partnership). The Court
reads “person” in the 5th amend. as “natural person.” The act of producing and the documents
themselves are not protected.
a. Braswell v. United States: even though it was an individual within the corporation who would be
incriminated, as the custodian of the corporation, he could not assert his fifth amendment right
and refuse to produce the documents. The jury can make the connection between the guilt of
the corporate entity and the guilt of the custodian. However, the jury cannot be told that the
custodian turned the documents over. There is automatic immunity for the act of producing
for the custodian.
F. Non-testimonial evidence.
1. Schmerber v. California: the compelled removal of blood for blood/alcohol testing does not violate the
5th amend. This does not violate the 4th amend. b/c they have probable cause to want to search the
blood. The argument is that he is forced to give evidence that is incriminating from his body.
However, the blood is not of a “testimonial or communicative nature.” The blood has no choice to lie
or tell the truth, it simply is.
2. Handwriting, fingerprinting, eye-witness testimony (based on what the person did and looked like) is
not testimonial.
3. To be testimonial, the communication must be an express of implied assertion of fact that can be true
or false: otherwise there is no risk of perjury, and no cruel trilemma (of punishment for truth, falsity,
or silence).
4. The statements you give in a psychological exam conducted by the prosecution may be used against
you, but you have a right to know that and adjust accordingly. Your demeanor is not protected,
however.
Milstead-Evans 24
5. The refusal to cooperate can be used against you, as in the refusal to take a blood/alcohol test.
G. Confessions and due process
1. Overview
a. Three related provisions: due process clause (5th–feds, 14th—states), 6th amendment right to
counsel, fifth amendment Miranda rights.
i.
The due process clause is still a valid concern, not disregarded or completely covered
by Miranda. Miranda is not the be-all-end-all of voluntary confessions and other due
process requirements. The due process clause requires statements be voluntary, not
coercive.
ii.
Sixth amendment: you don’t have to invoke the right to counsel, it is automatic. The
automatic right to counsel occurs after formal indictment or formal charge. Just being
arrested does not automatic give you the right to counsel (which is why you have to ask
for your lawyer during interrogation). The courts have found that the right to an
attorney is a prophylactic right in order to protect your right against incrimination.
iii.
Fifth amendment / Miranda: warnings, must be claimed (you can choose to speak when
you don’t have to.)
b. If Miranda does not apply, since it is not custodial interrogation, you still have the other due
process rights. If you waive your Miranda rights, you still have due process rights. Even if
instances where Miranda rights do apply you may still have due process rights, and they may be
more important. Fruit of the poisonous tree principles, for instance, don’t apply to Miranda
violations but do apply to due process violations. Miranda violations can be used for purposes of
impeachment while violations of the due process clause cannot. Also, 6th amendment applies in
all areas, not just police interrogations.
c. McNabb-Mallory rule: federal rule that stated that when a person is arrested ,they must be
promptly taken to a magistrate and formally charged. At that point, they were told they had
the right to remain silent and were given an attorney. The rule stated that a suspect could not
be questioned if they were not taken promptly to the judicial magistrate. If a person was not
taken to a judicial official and was questioned instead, any information obtained was excluded.
This rule has since been repealed by Congress. They also tried to repeal Miranda at this point
(see infra).
2. Miranda v. Arizona: any type of custodial interrogation is inherently coercive. This being the case,
the 5th applies, at least to the extent that the suspect should be aware of her rights.
a. Rules:
i.
“Prior to any questioning, the person must be warned that he has 1) a right to remain
silent, 2) that any statement he does make may be used as evidence against him, and 3)
that he has a right to the presence of an attorney, 4) either retained or appointed.”
ii.
If the individual indicates in any manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must cease. Police can’t ask him
about anything after that.
iii.
Suspects have a right to have an attorney present during questioning—the 5th
amendment does not provide for an attorney, but the theory is that an attorney
guarantees your 5th amendment rights.
iv.
If the police do continue questioning without the presence of an attorney, they will
have the high burden of proving he knowingly waived his rights.
b. Limitations
i.
Only used for 1) custodial 2) interrogation.
ii.
Does not apply to police trying to get witness statements. Just to suspects brought in
on probable cause.
iii.
Criticisms: there is no actual compulsion (just this amorphous inherent compulsion); it
is internally inconsistent (it assumes you don’t know your rights but that you have the
sophistication to waive them); it is inconsistent with other constitutional rights (they
don’t have to tell you of your right to refuse a search); most of your rights aren’t
explained (the rights have different consequences, and this is not explained); Miranda
is not effective in prevented unfair questioning; other means could be more effective;
What role
does the
illegal arrest
play? If the
arrest is
illegal and
there is a
valid Miranda
waiver, what
to do with
the evidence?
Milstead-Evans 25
c.
impact of Miranda (generally thought it has little impact and could have the opposite
effect of creating the illusion of voluntariness).
Custody: Miranda warning must be given only when police questioning occurs while the suspect
is in custody.
i.
The focus of the investigation is irrelevant: in deciding whether the suspect is in
custody, the fact that the police investigation has (or has not) “focused” on the
suspect is irrelevant. The police’s subjective intention is irrelevant.
ii.
Objective reasonable suspect test: whether a suspect is or is not in custody as of a
particular moment is to be determine by an objective reasonable suspect test: the
issue is whether a reasonable person in the suspect’s position would believe that he was
(or was not) in custody at that moment. Restrictions on freedom tend to show custody.
iii.
Undercover agent: One consequence of the “reasonable suspect” rule is that if the Δ
talks to an undercover agent or to a gov’t informant, and Δ does not know he is talking
to a law enforcement officer, no custodial interrogation has taken place. This is true
even if Δ is in jail. (Illinois v. Perkins) (it may implicate the 6th amendment, however)
iv.
Place of interrogation: the place in which the interrogation takes place will often have
an important bearing on whether “custody” exists. The test is always whether a
reasonable person in Δ’s position would believe he was free to leave, and this will likely
depend on the locale.
1) Station-house: thus interrogations that take place in a station-house are
more likely to be found custodial that those in say, the Δ’s home.
a) Arrest: If Δ has been told that he is under arrest and his escorted to
the police station, that’s virtually dispositive—Δ is clearly in custody,
b/c a person under arrest is not free to leave.
b) Placed in a patrol car: Similarly, if Δ has been place in a patrol car
under circumstances suggesting that Δ has been arrested, he is
clearly in custody.
c) Voluntary station-house questioning: a suspect who voluntarily comes
to a police station in response to a police request is normally not in
custody, and is therefore not entitled to Miranda warnings. (Oregon v.
Mathiason)
a. Lack of formal arrest not dispositive: However, the mere
fact that there has been no formal arrest will not by itself
suffice to prevent a station house questioning from being
custodial. If the surrounding circumstances would indicate to
a reasonable person in Δ’s situation that he was not free to
leave the station-house, then the questioning is custodial
however voluntary Δ’s initial decision to come to a station may
have been. For example, if during the course of voluntary
questioning the police let Δ know that they now consider him
the key suspect in the crime, that is likely to be enough to
convince a reasonable person in Δ’s position that the police
are about to arrest him; if so, Δ is already in custody.
2) Street encounters: the issue of whether Δ is in custody often arises where
the encounter takes place on the street.
a) Scene of the crime questioning: the police may engage in a general
question of persons near the scene of a crime without Miranda
warnings, but if the police focus on one particular suspect they should
give the warnings.
b) Δ acts suspiciously / Terry stop: the police may sometimes detain a
person not as part of a general “scene of a crime” investigation for a
specific known crime, but b/c the person is acting suspiciously. Such
encounters are not usually custodial, even if the person is frisked. i.e.
a Terry stop.
Milstead-Evans 26
3)
These factors are
not super
important—they can
just be helpful for
analysis.
d.
Traffic stops: stops of motorists for minor traffic violations will normally
not be custodial. Here, as in other contexts, the test is whether one in the
motorist’s position would believe that he was or was not free to leave.
Usually a driver would feel free to leave after the ticket was given.
4) Interview at home: if the encounter takes place at Δ’s home, while he has
not been placed under arrest, Δ probaly is not in custody.
5) Prisoners in Custody: Miranda will apply if a reasonable person would believe
his freedom of movement had been further diminished, beyond that already
accompanying being in prison. Most questioning of people in jail will require
the warnings.
6) Meetings with probation officers: warnings not required if the person is
just meeting with his officer and is the focus of an investigation. The
nature between the officer and the Δ is more counselor-counselee that
inherently coercive.
7) Questioning by custom officials: doesn’t apply.
v.
Summary—6 factors. Consider inherent coerciveness.
1) Whether questioning is voluntary
2) Whether the Δ has unrestrained freedom of movement
3) Whether the Δ had initiated contact with police.
4) Whether the police used strong-arm tactics or trickery.
5) Whether the atmosphere of the questioning was police dominated.
6) Whether the Δ was under arrest at the termination of the questioning.
7) The age of the Δ.
8) The length of time.
9) The place where the questioning takes place.
Interrogation: after one claims Miranda—asks for a lawyer—all questioning must stop.
i.
Volunteered statements: a volunteered statement is not covered by Miranda. That is,
if a suspect, without being questioned, spontaneously makes an incriminating statement,
that statement may be introduced against him, despite the absence of Miranda
warnings.
ii.
Indirect questioning: Interrogation will be deemed to occur whenever a person in
custody is subjected to either express questioning, or to words or actions on the part
of the police that the police “should know are reasonably likely to elicit an incriminating
response from the suspect.” (Rhode Island v. Innis: handicapped children case).
1) No interrogation found: application of this “should know are reasonably
likely to elicit an incriminating response” test will often mean that even
though the police make comments that lead directly to an incriminating
result, no interrogation is found. This was the case in Innis. This was also
the case Calisto, where the police said they were going to arrest the Δ’s
daughter and he protested with an incriminating response. Confronting with
evidence might have a different result. Edwards v. Arizona. However, this is
not dispositive, since the police might “just be keeping them informed” on
their case.
iii.
Police allow situation to develop: for instance, where the police allowed Δ and his
spouse to meet, expecting that Δ would incriminate himself: “officers do not
interrogate a suspect simply by hoping that he will incriminate himself.” The police
weren’t the ones who prompted the situation. (Arizona v. Mauro)
iv.
Identification questions: no need to give warnings before routine booking questions.
These questions are not investigatory, do not involve psychological intimindation and are
not likely to elicit incriminating responses. Also, they are not testimony (see Fifth
Amendment, supra).
v.
Questions by non-police: where questions asked of a suspect by people other than the
police, these will invoke Miranda only if asked by other law enforcement officials.
vi.
Undercover police: Miranda doesn’t apply
Milstead-Evans 27
e.
Accuracy: if the essence or meaning of the rights is clear, that is sufficient. The rights don’t
have to be read word for word.
One theme throughout this
f. Waiver: must be made knowingly, voluntarily and intelligently.
section is the idea that
i.
Waiver generally: after being read the Miranda warnings, a suspect may waive his
just b/c a Δ doesn’t know
right to a lawyer and his right to remain silent. Or he may one but not the other.
the consequences of waiver
Waiver may be express or implied.
doesn’t mean he did not
1) Knowing requirement developed in Burbine. The person must speak English
voluntarily and knowingly
and generally know what the rights are—you must be able to understand the
waiver.
words.
2) Voluntary: a free and deliberate choice.
ii.
Express: express waivers raise few problems. Normally an express waiver will take the
form of a writing signed by the suspect, in which he states that he is waiving his right
to a lawyer and his right to remain silent. As long as Δ is induced to sign the waiver
without coercion or trickery, no legal problems should be presented.
iii.
Implied: Miranda rights may also be subjected to an implied waiver. In an implied
waiver, Δ does not expressly state that he is waiving his rights, but his words or
conduct suggest that he has decided to relinquish those rights. Courts scrutinize an
alleged implied waiver far more carefully than an express.
1) Burden of proof: the prosecution bears the burden of demonstrating that
the implied waiver was a knowing one, at least in the sense that Δ was aware
of his Miranda rights and of his right to refuse to waive them.
2) Silence: The accused’s silence after being read his Miranda warnings will
never by itself be sufficient to demonstrate a waiver.
3) Refusal to sign waiver form: the suspect’s refusal to sign a written waiver
form does not automatically negate his waiver of his Miranda rights.
Barrett. This shows you don’t have to understand the legal consequences of
waiver—i.e., that oral statements can be used against you, just understand
that anything you say can be used against you.
4) Conditional waiver: a Δ can say he will talk about x but not about y, and for
the police to go ahead and question him about y would be a violation of
Miranda. Soliz. (agreed to talk about immigration but not smuggling).
This is a 9th
5)
Scope of interrogation: the Δ does not need to know the real scope of the
Cir. Opinion—
interrogation. It is okay for the police to “trick” the Δ into talking. Spring.
McGoldrick
isn’t sure it is
Also, if the 1st confession was tainted, and they get you to give another one,
correct.
then just b/c you thought the first one could be used against you and that’s
why you gave the second doesn’t mean the waiver was knowing. Elstad.
6) Refusal to sign statement without lawyer: similarly, if the suspect makes
an oral statement, but refuses to sign a written transcript of the statement,
this too, will not automatically mean that Δ has failed to waive his rights.
7) Retained lawyer not consulted: where a lawyer has been retained by the
suspect’s family, the suspect’s waiver of his Miranda rights will be effective
even where the police decline to tell him that the lawyer has been retained
for him, even where the police prevent the lawyer from seeing the suspect.
a) Moran v. Burbine: it doesn’t have any effect on the mindset of the
suspect, was the reasoning.
8) Suspect’s ignorance of the charges: the police have no obligation to notify
Δ accurately of the charges against him, or of the matters to which the
interrogation will pertain. Even if Δ believes that he will be interrogated
about a minor matter, and is instead questioned about a major crime, the
waiver will be valid.
9) Mentally ill Δ: where a suspect’s waiver is caused in major part by Δ’s
mental illness, this does not make any difference: as long as the police do
not coerce Δ into waiving his rights, Δ’s mental illness will not impair the
validity of the waiver. (although it could be a factor showing it was knowing.
iv.
Multiple Interrogation sessions
Milstead-Evans 28
1)
2)
Thus if the prosecution seeks
to introduce a statement
from a suspect who initially
invoked right to counsel, it
must be demonstrated that
1) counsel was made available
to him; or 2) the suspect
himself initiated the further
communication; and 3) a
knowing, intelligent, and
voluntary waiver
subsequently occurred.
Right to silence invoked in first session: suppose that, in the first session,
the suspect invokes his right to remain silent. May the police wait several
hours, or days, the recommence interrogation (perhaps giving the warnings
anew)?
a) Different crime: where the second interrogation is about a different
crime, and the police give new Miranda warnings prior to the second
interrogation, probably a waiver given by the suspect is valid, despite
his insistence on remaining silent at the first interrogation. (Michigan
v. Mosley)
b) Same crime: Where the second questioning session is on the same
crime as the first one, the Supreme Court has never decided how and
whether Δ may undo the effects of his earlier insistence on his
rights. Probably, as long as the police end their questioning promptly
when Δ asserts his Miranda rights in the first session, wait at least
several hours before resuming—called a “cooling off” period—and give
new warnings, they may interrogate anew even about the same crime.
c) The crime scene: the case where he claimed his right to remain silent
and then they put him in a room with crime-scene photos. It was
asked whether he had a cooling off period. This seems more like an
interrogation issue.
Lawyer requested in first session: Where Δ asserts in the first session
that he wants a lawyer, it is much harder for the prosecution to show that Δ
later waived this demand. The Court imposes a “bright line” rule that “an
accused. . . having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation. . . until counsel has been
made available to him, unless the accused himself initiates further
communication. . . with the police.” (Edwards v. Ariz.)
a) Response to questioning: the mere fact that Δ responds to later
police questioning will not mean that Δ has waived his previouslyexpressed desire for a lawyer. For example, the police arrest Δ and
give him his Miranda warnings. He says, “I want a lawyer.” The police
don’t get him a lawyer. Two days later, the police ask him a question
about the crime, and Δ responds. This response will not be admissible
against Δ, b/c once he asserted the right to a lawyer, this assertion
could not be waived by anything less than a conversation initiated by
Δ. Δ’s mere response to police initiated questions is not sufficient.
(Edwards)
a. Oregon v. Bradshaw: the Δ asks the police what is going to
happen next. The police tell him he should take a lie-detector
test. The question was sufficient initiation. He was not just
wanting to talk about something unrelated; he was asking
about the investigation and they took advantage of his doing
that. After initiation, the question is whether the
statements are knowing and voluntary.
b) Questioning about different crime: this “bright line” rule applies
even where the police subsequently wish to question the suspect about
a different crime than the one they were questioning him about when
he first requested the lawyer: an invocation of the right to counsel
under Edwards was not offense specific. (Arizona v. Roberson).
c) Request must be unambiguous: the “bright line” rule only applies
where the suspect clearly asserts his right to have counsel present
during a custodial interrogation. If the suspect makes an ambiguous
request, one which a reasonable observe would think might or might
not be a request for counsel, the questioning does not have to stop.
In fact, the police do not even have to (though they may) ask
Milstead-Evans 29
3)
4)
5)
g.
This is likely
to be on the
final exam.
Uses
i.
clarifying questions to determine whether the suspect really does
want a lawyer. Davis v. United States.
d) Lawyer must be present: Suppose that they suspect asks for a
lawyer, consults with this lawyer, and is subsequently questioned by
the police outside the lawyer’s presence. This questioning violates the
bright line rule. That is, the lawyer must be present during the
subsequent questioning, and allowing the suspect a mere consultation
before the questioning will be not substitute for this. (Minnick v.
Miss.)
Δ waives all rights in first session: if the suspect waives all of his Miranda
rights during the first session, probably the police are not required to
repeat the warnings at a subsequent questioning session.
Cannot claim right to lawyer before you have been Mirandized and have this
be a valid claim under Miranda.
The fact that you have seen your attorney does not give the police the right
to question. The initiation rule still applies.
Statements made in violation of Miranda can be used to impeach. This means that if Δ
confesses and it is not admitted to evidence b/c of a Miranda violation, the Δ cannot
get and testify without the inconsistency being pointed out.
ii.
Whether the Miranda violation was unintentional or intentional by the police doesn’t
affect whether the statements can be used for purposes of impeachment.
iii.
Involuntary confessions (those obtained in violation of the Due Process clause) cannot
be used to impeach.
h. The Δ’s invocation of the right to be silent cannot be used to impeach him/her. They say it is a
Due Process right—out of fundamental fairness, if you are told you have the right to be silent,
it shouldn’t be later used against you. However, a Δ’s not coming forward before arrest when
he had a reasonable defense can be used to impeach that person. This is b/c the fairness isn’t
violated if you were never Mirandized. This is true if you are silent with a “good defense”
before Miranda warnings.
i. Evidence obtained as a result of Miranda violations can be used. The fruit of the poisonous
tree rule doesn’t apply.
i.
This is true if a witness is found as a result of violations of Miranda. Tucker.
ii.
This is also true if physical evidence is uncovered as a result of statement obtained in
violation of Miranda. (at least as far as O’Connor’s concurrence goes—the majority
hasn’t held.)
iii.
This is also true if subsequent confessions are made in accordance with Miranda after
a confession taken in violation of Miranda. Elstad. The exception is if the subsequent
confession comes almost immediately after the first. This is to prevent police from
taking confessions in violation of Miranda and then giving the warnings, after the
suspect sees no reason in keeping silent since they don’t know the first can’t be used
against them.
j. When the Court says that Miranda is not constitutionally required, they mean that it is a
prophylactic to keep the real Constitutional rights from being violated. This is in part the
justification for allowing impeachment and fruit of the poisonous tree exceptions. This is
squared with Dickerson in that here the Court claimed that the two were closely enough
connected that Miranda could not be obviated by Congress.
k. Public safety exception:
i.
A statement made in violation of Miranda may be admissible if the need to take that
statement was reasonably necessary to ensure public safety. For example, the man is
caught in the store and the police quickly ask him where the gun is. He answers.
Quarles. The reasoning was that the gun, if undiscovered, could hurt someone.
ii.
Police safety ensured also an exception.
3. 18 U.S.C. § 3501
Milstead-Evans 30
a.
This federal law uses the voluntariness standard. Congress does not have the right to overrule
Miranda, since the Court found it was constitutionally based. So, § 3501 has not been useful or
applied very much. Only in Dickerson.
b. This statute repealed the McNabb-Mallory rule.
4. Difference from 6th Amendment: sixth amendment is offense-specific as it applies once you have
been formerly charged.
5. Due Process Generally: Confessions must be voluntary and not coercive.
a. Two elements: 1) the police subjected the suspect to coercive conduct; 2) the conduct was
sufficient to overcome the will of the accused, given her particular vulnerabilities and the
conditions of the interrogation, and resulted in an involuntary statement.
b. Even if Miranda warnings have been given, confessions still have to be voluntary. Due process is
relevant especially for non-custodial interrogation, waiver of Miranda, and when the different
consequences are at stake.
c. Test for Voluntariness: whether there is police coercion. The test does not depend on the
personal characteristics or thoughts of the Δ, even if the Δ is mentally ill. In asking whether
the police coercion is too severe, it asks whether it was such that an innocent person would
confess or whether a reasonable person’s will would be overborne. Consider totality of the
circumstances.
i.
Different factors tending to make a confession involuntary is police taking advantage
of youth and lack of education or intelligence, denials of physical needs or beating or
psychological pressure. Psychological pressure includes being held incommunicado,
trickery [although courts largely tolerate], sustained interrogation, and false promises
of rewards. Finally, whether the accused was aware or had been apprised of his
constitutional right to counsel and right to remain silent is a factor.
ii.
Deception and trickery are generally okay. False documentation is not. Specific
promises of consideration and specific benefits are okay if they are true—the vaguer
promises can be false. Threats of physical violence are violations. Spano states that
confessions taken after the suspect is charged and without counsel are violations of
due process.
iii.
If police have a scheme to play on the known weaknesses of the Δ, and there is a causal
connection, this could be a factor showing involuntariness.
iv.
A confession induced by drugs is by definition involuntary and inadmissible. This is the
case even if the police are not the ones who administered the drug and did not know
the effects of the drug (in other words, even absent police coercion.)
d. If a confession is taken in violation of due process, it must be excluded not only from the
prosecution’s case in chief, but also from use to impeach Δ’s testimony (since confessions taken
involuntarily are inherently unreliable). Due process violations also exclude fruit of the
poisonous tree. Indirect use of statement and tangible evidence, witnesses are all disallowed if
they are the result of the due process violation. Therefore, if you find a Miranda violation, you
should also look for a due process violation in order to see if the additional consequences
attach.
APPLICATIONS OF IMPEACHMENT AND FRUIT RULES IN DIFFERENT CONTEXTS
4th Amend.
Impeachment:
Can be used
against Δ, but
not against
witnesses.
Fruit of
poisonous the
tree:
principles do
Miranda
Impeachment:
can be used.
Fruit of the
poisonous
tree:
principles
don’t apply
Due Process
Impeachment:
Cannot be
used for
impeachment
purposes
Fruit of the
poisonous
tree:
Principles do
Sixth Amend.
Impeachment:
Can be used
Fruit of the
poisonous
tree:
Principles do
apply.
Milstead-Evans 31
apply (incl.
attenuation of
the taint,
independent
source,
inevitable
discovery)
XX.
apply
Sixth Amendment – Right to Counsel after formal charge / indictment
A. Requirements for invocation: 1) that the government deliberately elicited incriminating statements from the
accused in the absence of counsel (or a waiver of counsel); and 2) that this occurred after the initiation of
judicial proceedings (which is the point at which the right to counsel is triggered).
B. Only applies after the suspect has been formerly charged / indicted. But after Δ has been formally charged,
he/she has an automatic right to counsel and does not have to claim it as a right at all critical stages in the
prosecution. Δ cannot be questioned in any way without his/her lawyer after being formerly charged.
1. Massiah v. United States: Police sent in cooperating suspect to get incriminating statements from
someone who has already be indicted. Stands for the proposition that once the suspect has been
charged, the police cannot extract a confession without the presence of counsel. The justification is
that by that time, the adversarial relationship has been sealed, and just as a rule of ethics is that in
civil litigation the opposing party shouldn’t be contacted directly, neither should the Δ be contacted in
a criminal case. This was true even in Massiah where the Δ didn’t know that he was giving
incriminating statements b/c the police has induced an accomplice who has cooperating to extract the
statements.
2. Also applies at psychological exams—the lawyer must be informed of them and of the scope.
Psychological exams will take place whenever the Δ places her insanity or mental state at issue. The
attorney doesn’t have a right to be present during the exam, however.
C. Further, police cannot deliberately elicit incriminatory statements.
1. “Deliberate” means the police are trying to obtain information or know or should have known that
information will be obtained by their actions.
a. An example of not deliberate was the corrections officer who became friends with the inmate.
Bey v. Morton.
b. Undercover agents / paid informants are deliberate elicitation, but those only planted only to
listen are not. Listeners are not “eliciting.” It is also okay if the informant responds w/ neutral
comments that would be expected in a conversation. Just no pumping for information.
Informants are not police agents if they decide to provide the information by their own volition.
c. Really, if there is any questioning or functional equivalent of questioning, a violation will be
found.
2. Brewer v. Williams—the Christian burial case. (earlier seen in the context of inevitable discovery—the
body was kept in while the confession was excluded). He had already been charged. The Court
established the “deliberate elicitation” rule. The question then was whether the police’s speech
resulted in a waiver of the 6th amendment rights. The Court found that it did not.
D. The Sixth Amendment is offense specific. This means the police can question about a different, unrelated
crime. Maine v. Moulton. If they know that incriminating statements will be forthcoming with regard to the
charged crime, they cannot use those statements. They can use statements related to other crimes.
E. Waiver
1. After invocation (which is not necessary for 6th amendment protection but for this application), the
Edwards rule applies. This means the police can only question if the Δ initiates conversation. Michigan
v. Jackson. This is how the lower courts have applied it.
a. Police can initiate a waiver about unrelated crimes.
b. Otherwise, if the Δ doesn’t invoke right to counsel (but it is automatic), police can initiate
waiver.
c. Statements obtained in violation of Michigan v. Jackson, may be used by the prosecution to
impeach the defendant’s testimony at trial, even though the statement is inadmissible in the
prosecution’s case in chief.
2. Police do not have to inform the suspect that he has been indicted.
Milstead-Evans 32
3. Otherwise, waiver must be knowing and voluntary and intelligent, much like the requirements for
waiver under Miranda.
4. If you have a Sixth Amendment right to counsel, you must be informed your attorney is trying to
reach you.
SPECTRUM RELATED TO WAIVER AND CONFESSIONS
Patterson
--Indicted
--Mirandized
--Δ Waived
--Δ
questioned.
--Miranda
sufficient,
doesn’t need
indictment
warning
Jackson
--Indicted
--Δ claims his
6th amend.
Right.
--Mirandized
--Police
initiate
--Δ
Confessed.
--Police can’t
initiate if Δ
claims
McNeil
--Indicted
--Δ claims 6th
amend. right.
--Questioned
about another
offense.
--Δ waived
--Miranda
Confessed
Cobb
--Indicted as
to one crime
--suspected
as to two
--once
formally
charged with
one crime,
can’t be
questioned
about related
offenses.
U.S. Supreme
Court
reverses and
says that
separate
crimes get
separate
protection
F. Right to have counsel appointed applies in any situation where jail is involved. Even if jail is possible, if jail is not
actually sentenced, there is no right to a lawyer.
1. History:
a. Powell v. Alabama: a historical case where the black, itinerant workers were given the death
penalty after a one-day trial, no lawyer. The court found a due process violation—before the
6th was extended to the states.
b. Gideon v. Wainwright: extends the 6th amendment to the states, there is a right to a lawyer
for any felony.
c. Argersinger v. Hamlin: extends to misdemeanors, any situation in which Δ is sentenced to jail.
Even if inprisonment is a possibility, there is no right to have a lawyer appointed unless jail is
actually sentenced. The gov’t therefore has to decide ahead of the trial whether jail time will
be sought. This creates a contradiction: you have a right to counsel (under Miranda) at
questioning, but not at trial.
2. Indigence: means that Δ does not have resources at that time to pay. Sometimes the state will ask
for reimbursement.
3. Prior, valid, uncounseled misdemeanor convictions can be used to enhance your sentence for later
crimes ( in a situation where there are recidivist laws).
4. Also have a right to represent yourself. The judge has to determine whether you are competent to
represent yourself.
G. Critical Stages—Some flow from Due Process.
1. Preliminary: line-ups, preliminary hearings
Milstead-Evans 33
XXI.
XXII.
2. Guilt phase
3. Sentencing phase
4. Appeals: flows from due process clause. Sometimes procedural due process requires counsel. You
have the right to counsel appointed on first appeal. You do not have a right to appointed counsel for
discretionary appeals.
a. In CA, as a matter of right, you can appeal to the CA court of appeals and have a right to
counsel for that appeal. If you want to appeal to CA Supreme Court, you have no right to
counsel and you have no right to appointed counsel to challenge by writ of habeus corpus.
b. In CA, the first appeal for death penalty cases is to the CA Supreme Court, so you have a right
to counsel for that appeal.
c. An indigent person is entitled to a free trial transcript to perfect an appeal. This flows from
due process.
5. Parol revocation hearings—you have a right to counsel to protect due process.
6. Juvenile delinquency—you have a right to counsel.
7. Termination of parental rights: it is akin to criminal neglect and you lose all rights to your child. The
Supreme Court has said that the nature of the proceeding entitles you to appointed counsel.
8. Experts: procedural due process may give you the right to have experts appointed, for instance, to
support insanity defense. If the Δ can show the need for experts, then she can have them appointed
(DNA experts, investigators, etc. in order to perfect defense). Some states are very strict and
require Δ to show that it is essential to the case. Ake v. Oklahoma.
H. Ineffective Counsel
1. A tort standard—professional negligence—is the standard that is applied to show that the right to
counsel was denied b/c it wasn’t effective.
2. Must also show reversible error—that a competent counsel would have made a difference in the case,
led to an acquittal.
3. Can only argue if there was bad counsel during trial or first appeal (since you don’t have a right to
counsel later).
Discovery in the Criminal Context
A. There is not the same level of “info sharing’ and disclosure w/ criminal cases as there is w/ civil cases. Not only
is it necessary to prevent disclosure for safety of witnesses, etc., but since the Δ doesn’t have to share
information, the prosecution doesn’t either.
B. The regulation of discovery is principally a matter of law, not of the constitution. The rules therefore vary
greatly from state to state. There are a number of things, by statute, the prosecution has to turn over to the
Δ. Names of witnesses, previous written statements made by the Δ. Names of experts. Reports by experts.
Sometimes the prosecution avoids turning things over by not having them written.
C. Prosecution and Δ can decide to provide reciprocal discovery.
D. Sometimes if the prosecution doesn’t turn over the information, then the evidence will be excluded from trial.
This happened with the OJ Simpson trial—carpet fibers report wasn’t turned over in time.
E. The Fifth Amendment will protect the Δ from some disclosure, but it doesn’t prevent disclosure of alibi
witnesses and the intent to use an insanity defense. This is to give the prosecution time to interview the alibi
witnesses and to prepare to answer the insanity defense. This doesn’t violate the fifth amendment b/c if this
information is going to come out at trial anyway.
1. Other states will require other defenses to be revealed as well. This is probably constitutional as well.
F. The Brady Rule: the court holds that the Due Process clause requires that the prosecution have the affirmative
duty to turn over any material exculpatory information that the prosecution has and the Δ doesn’t have. In
Brady, the prosecution had a witness saying someone else fired the shot. This didn’t go to guilt or innocence
since the Δ would be guilty under the felony murder rule. However, the court did find that it was material and
exculpatory w/ regard to the death penalty. The information should be provided by the own initiative of the
prosecution and doesn’t have to be requested by the Δ.
1. Lost evidence: does the loss of evidence violate the due process clause? It doesn’t.
Guilty Pleas
A. Ninety some-odd percent of trials end in guilty pleas. The negotiation process is integral to our system.
B. Constitutional aspects:
1. There must be an intentional relinquishment of known Constitutional rights. Elements:
Milstead-Evans 34
a.
2.
3.
4.
5.
6.
XXIII.
There must be an explicit record that you have been informed of certain rights and you have
waived them. Written is best, but not required. If you can show the common practice in the
jurisdiction, that is enough even.
b. The right you have to be told you have (and you explicitly waive): 1) right to an attorney (usually
you will have an attorney); 2) you have a right to a jury trial; 3) you have a right to crossexamine and confront any witnesses against you; 4) you have a right not to incriminate yourself.
c. Express waiver
The plea must be knowing and intelligent. You must be aware of the principle elements of the crime.
If you plead guilty to first degree murder, you must be aware that an element of first degree murder
is premeditation.
The Δ must be competant to stand trial. A person not competant to stand trial (capable of assisting in
own defense) is not competant to plead guilty.
The court must determine a factual basis for the plea. Two possibilities:
a. The court undertakes a factual questioning with the Δ, asks for a narrative summation.
b. The court will ask whether the Δ counsel has informed of the details and it will ask whether the
person agrees to and understands all.
Once you plead guilty, your plea becomes final. You can’t appeal. The degree of finality varies
depending on the state at which you try to withdraw your guilty plea.
a. If you withdraw prior to the sentence, you can withdraw if fair and just.
b. After the sentence, you can withdraw your guilty plea only if to correct manifest injustice.
Once you plead guilty you’ve waived all your constitutional objections. There are some courts that
allow conditional guilty pleas, conditional on appeal based on certain constitutional objections.
Line-ups
A. Sixth Amendment concerns: After indictment, the police cannot arrange an out of court identification lineup
without the Δ’s lawyer present. United States v. Wade. You have a right to counsel at all critical stages, and this
is a critical stage
1. Failure to have the attorney present will result in the exclusion of the line-up identification. Exclusion
of in-court identification may also be considered fruit of the poisonous tree.
2. Exclusion of in court identification will not result if there is an independent source (other than the
tainted lineup) for the identification.
a. For example, in Gilbert, there were many witnesses, over a hundred, who were identifying the
suspect. (This might should have had some due process problems—witnesses would be likely to
just do what they others were doing).
3. Pre-indictment/ pre-charge lineups do not require a lawyer. Kirby v. Illinois. The Due Process clause
of the 5th and 14th amendment can make up for any police wrongdoing before a lawyer is present to
guard against it. The Court was concerned about extending Wade for practical reasons relating to
maintaining evidence and working quickly.
4. Post-charge photographic identifications do not require an attorney present. United States v. Ash
B. Fifth / Fourteenth Amendment concerns: Due Process Implications
1. Impermissible / unnecessary police suggestive techniques are one factor that contributes to due
process violations—if the police do something to create a substantial likelihood of irreparable
misidentification. This analysis asks whether there is a due process issue.
a. In Stovall (stabbing victim in hospital), the police found that there was suggestiveness, but that
it was not impermissible since the victim could not leave the hospital and she was apparently on
her death bed.
b. Example of Due Process violation: Foster v. California: the witness was called to a three-person
line-up where the tall suspect was placed between two short people. The witness couldn’t make
an id. So they called the witness back for a second line-up, this time putting the suspect in the
line-up between two different shorter people. The witness identified the tall suspect.
2. Suggestiveness only creates a due process issue. It does not resolve the due process issue. To decide
whether there is a due process violation, courts consider the totality of the circumstances to
determine whether the identification was reliable. Brathwaite. What factors determine reliability?
a. Witness’ opportunity to view
b. Degree of attention the witness paid to the appearance of the suspect during the crime
Milstead-Evans 35
c.
XXIV.
XXV.
Accuracy of the description that the witness gives after the crime but before the
identification procedure.
d. Level of witness’ certainty (many experts claim this has nothing to do with whether the
identification is reliable; it’s more a personality trait).
e. Time between crime and the confrontation
3. If there is a due process violation, then that identification is excluded as well as any in-court
identification by that witness.
4. In-court identifications are inherently suggestive since the Δ is naturally the one they will i.d. They do
try to avoid the suggestiveness by not keeping the Δ in prison clothes and handcuffs. Now a person
can be handcuffs only if he is misbehaving.
5. There is of course ample opportunity to challenge eye witness i.d. in cross –examination during trial, so
the due process approach was not totally necessary. One problem with challenging i.ds in court is if
the id was made with mug shots—the attorney doesn’t want the jury to know of her client’s prior
record.
6. Voice identification: the same Brathwaite rules apply—the procedure / id must be reliable.
C. There has been a lot of research about how to improve eye-witness identification:
1. For instance, showing 6 pictures at once is less reliable than showing them sequentially. Some
jurisdictions are developing procedures based on this research.
Right to Jury Trial
A. Duncan v. Louisiana: extended 6th amendment right to jury trial to the states.
B. Scope of Right: the court in Duncan, like with regard to trial in civil juries, said the right was the same at the
time the constitution was ratified. If you had a right then, you have a right now. If you didn’t you still don’t.
1. The size of the jury: can be 6, constitutionally. Size of 12 is not fixed. 5 is too small.
2. The requirement of unanimity: jury verdicts are common law were unanimous, but the court decided
still that non-unanimous verdicts of 9-3 were upheld. The court has said, though, that in juries of 6,
unanimous verdicts are required. In state trials, you can have non-unanimous, but in federal trials,
they do have to be unanimous.
C. Jury of your peers + 14th equal protection = “a fair cross-section” of your community. This means that the pool
of jurors has to accurately reflect the community. The actual jury panel does not.
D. It violates the 14th Amendment for attorneys to use race or gender as their basis for rejecting a juror or using
a preemptory challenge against them. There are of course difficulties in determining this, and the only thing
that can really be done is to look for a challenge.
Speedy Trial
A. Two concerns: 6th amendment right to a speedy trial—protects only the “accused” and therefore doesn’t kick
in before charges or arrest. Due Process: may apply when there is inappropriate prosecutorial delay before
charges/ arrest.
B. Sixth Amendment
1. United States v. Marion: the delay between the crime and the indictment was acceptable. There is no
6th amendment protection for pre-accusatory delay. The 6th amendment starts with arrest,
indictment or formal charges.
2. The justification is concern for prejudice against the defense and the concern that someone spend a
long time in jail before their trial. There is also some concern with the Δ having the charges / trial
hanging over his head without knowing what is going to happen. It can also of course be an advantage
to the Δ if there is prosecutorial delay—witnesses’ memories fade. These are not concerns that arise
out of a long investigation.
3. The time between dropping of charges and a later indictment does not count toward the speedy trial
determination. United States v. McDonald.
4. Factors to determine speedy trial violation: 1) length of delay; 2) reason for delay; 3) defendant’s
assertion of his right; 4) prejudice to the Δ. Wingo.
a. Barker v. Wingo: you don’t have to assert your speedy trial right and there is not set time that
is too long. These were the arguments that the court rejected in favor of the above balancing
test. This was the case where one Δ was easier to prosecute and they waited until they were
finished with that prosecution before they brought the second Δ to trial. During this time
there were five trials b/c of hung juries and mistrials.
Milstead-Evans 36
C.
D.
E.
XXVI.
Double
A.
B.
C.
5. Any delay approaching a year is “presumptively prejudicial.” It is after this that the Barker v. Wingo
factors are considered. They don’t have to be considered if there is no presumptive prejudice.
Doggett v. United States.
Due Process: Any delay prior to arrest or charge is a due process question.
1. Requirements: If the pre-indictment delay causes substantial prejudice to the Δ’s rights AND the
delay was an intentional device to gain tactical [unfair] advantage over the accused [or for other bad
faith purposes], there is a due process violation. Both elements must be present for there to be a due
process violation. Marion.
2. United States v. Lovasco: the element of intentional delay to gain an unfair advantage was not met.
The prosecution delayed to get more witnesses or people to prosecute, but this was not sufficient.
These were legitimate strategies; not bad faith.
Effect of violation: If there is a violation, the Δ cannot be prosecuted at all.
Speedy: What is a “speedy” trial? The constitution does not give enough guidance as to how long is too long.
There are various state laws that define it more narrowly and specifically define the time period. For example,
most laws require a person to be brought to trial 60-90 days after being arrested. For very complicated cases,
this doesn’t happen, but it may b/c of the Δ delays. However, it gives guidance for a time period that is
considered acceptable. It doesn’t have any constitutional significance.
Jeopardy: You cannot be tried or punished twice for the same crime.
What isn’t barred or when jeopardy doesn’t attach:
1. Trials by separate sovereignties. Trials by different states included. Separate sovereignties can each
convict, too.
2. Dismissals of a case prior to jeopardy attaching. Jeopardy attaches when the jury is impaneled. If
you have a non-jury, court trial, jeopardy attaches when the first witness is sworn. Anything that
happens pre-jeopardy attachment, there is no double jeopardy violation. Thus, it is the preferred
approach that motions regarding 4th, 5th amendment violations be brought prior to trial.
3. A person is convicted, and the conviction is reversed on appeal. This is called ”continuing jeopardy.”
The person can be retried unless the reversal is for insufficiency of the evidence.
4. No jeopardy that prevents Δ being charged with different offenses. DJ only applies to being tried
for the same offense. Therefore, there is no claim preclusion applying, although there may be issue
preclusion. The problem is that it is hard to know what the jury has actually decided upon.
Dismissals: It is the expectation of the court that the Δ will not be tried again.
1. If by the prosecution, double jeopardy attaches.
2. Motion to dismiss by the Δ, jeopardy does not attach unless the dismissal is on the merits. If it is
on the merits, jeopardy applies.
a. United States v. Scott: the Δ moved to dismiss b/c of speedy trial violation. This wasn’t a
dismissal on the merits, so no jeopardy attached after it was reversed on appeal.
3. If by the court on the merits, jeopardy attaches
Mistrials: It is the court’s expectation that the Δ will be tried again.
1. Motion for mistrial by the Δ jeopardy won’t attach. The Δ makes the choice to start over again, so he
can’t then claim double jeopardy. One exception is if the prosecution engages in misconduct for the
purposes of getting the Δ to move for the mistrial. Then jeopardy will attach.
2. United States v. Scott:
3. Motion for mistrial by the prosecution or court if there is manifest necessity for retrial, no jeopardy
attaches. If there is no manifest necessity for a new trial, jeopardy will attach. “Manifest necessity”
means “in the interest of justice.”
4. Mistrials include: hung juries (truly hung), misconduct on either side or by witnesses (depending on
how serious the misconduct). These create manifest necessity of new trial. Problems with evidence
or witnesses won’t create manifest necessity.
Milstead-Evans 37
EFFECT OF DISMISSALS AND MISTRIALS
Dismissals
Mistrials
By prosecution: can’t try
again—jeopardy attaches
By prosecution: jeopardy
attaches unless manifest
necessity
By Δ: no jeopardy (can try
again), unless on the merits
By Δ: no double jeopardy (can
try again)
By court: if on the merits,
double jeopardy attaches
D. Appellate reversal: when the person is convicted. The Δ can appeal. If the Δ gets the reversal, then the
government can retry unless the reversal is on the grounds of insufficiency of the evidence. This means there
was no sufficient evidence to justify a guilty verdict. Any other grounds, the government can retry. As long as
the reversals are not on the merits, the gov’t can retry as often as they want.
1. This is different from weight of the evidence. Weight of the evidence (not every jurisdiction allows
reversal b/c of weight of the evidence) means that there was reasonably evidence justifying the jury’s
decision, but the appellate court disagrees. Insufficiency of the evidence means no reasonably jury
could have found guilty. Reversal on weight of evidence allow retrial. The line is murky at best, so the
facts should tell you which it is.
2. Sanabria v. United States: the lower court mistakenly threw out evidence that resulted in a dismissal
on the merits. Jeopardy attached.
3. Montana v. Hall: Δ gets conviction of incest reversed since it was his ex-wife’s step daughter. Gets
reversed. He gets charged with sexual assault of the minor. He says it’s the same crime. The
Supreme Court said it wasn’t a dismissal on the merits, but because the charging instrument was in
error. This case is inconsistent with Sanabria.
4. Parker v. State: Δ is charged with felony murder. Conviction reversed b/c not “felony murder” b/c
killing not in furtherance of felony. Jeopardy not attach b/c he was just charged with the wrong
crime. He was convicted again for capital murder.
E. When does it attach?
1. Any time there is a finding of guilt or innocence on the merits by the jury, court or appellate court.
2. Same crime:
a. Blockburger Test: how to determine whether you have the same crime. The basic test is it is a
different crime if it has different elements. The lesser includes the greater and vice versa:
therefore if you are acquitted of first degree murder, then you are acquitted of manslaughter
and vice versa. The difficulty is in determining whether there are lesser and greater offenses.
If there are, the lesser and greater offenses are precluded. To be different, each must have
a distinctive element—if only one of the two crimes has a distinctive element and the
other doesn’t, they are the same crime.
i.
You can’t be separately sentenced for the two crimes since they are considered the
same crime. Double jeopardy also prohibits multiple sentencing for the “same crime.”
The remedy on appeal is for the court to just sentence Δ for one of them.
ii.
The jury always has the option of coming back with the lesser included (although they
aren’t always told that).
iii.
Homicides of different levels are the “same crime” b/c the greater includes the lesser.
iv.
Felony murder / felony: you can’t be convicted of both felony murder and the felony
independently. There is no distinctive element—felony murder has the murder, the
felony does not.
v.
In order to apply the Blockburger rule, you would have to know the elements of the
crime. It will have to be clear from the fact pattern.
vi.
This rule is actually just a presumption—it isn’t a limitation from the legislative branch.
Therefore, if the legislature wants to punish you for lesser and greater offenses, they
can. In other words, the Blockburger rule isn’t constitutionally mandated and the
legislature can come up with different sentences for each. They just haven’t said so
yet.
Milstead-Evans 38
b.
If there are different victims, it isn’t the same offense. For instance, Andrea Yates could be
charged with the murder of 2 children, acquitted, and then charged with the other 3 or 1 or 2
all separately.
3. An acquittal on the merits: the jury or the judge after the trial, jeopardy attaches and prosecution
cannot seek a reversal. It doesn’t matter how erroneous the decision is.
a. One exception recognized in lower courts: the jury convicts and the judge acquits on the merits
after the conviction, the lower courts say the government can appeal the acquittal on the
merits. This hasn’t been decided by the Supreme Court yet. If the appeallate court says there
is sufficient evidence, the conviction be reinstated.