Professional Documents
Culture Documents
Con Crim Pro
Con Crim Pro
Monday, January 10, 2011
8:13 PM
I. Course Overview:
a. Mid‐term
b. Final Exam
c. Focus on application of Constitution to criminal defendants rather than procedural history
II. Due Process vs. Crime Control
a. Dichotomous: some people willing to trade one more for the other
III. The System
a. Trial Court:
b. Case is heard
c. If defendant is aquited, case ends
i. Can be appealed to intermediate appellate court
ii. If conviction is reversed, it's retried in trial court with exceptions
iii. Whoever loses in court of special appeals can appeal to court of appeals in MD
iv. Whoever loses that, can petition to SCOTUS
v. If defendant loses all the way up, can file writ of habeus corpus
1) Goes to Fed. Dist Court
2) Whoever loses can appeal to US Ct of Appeals
3) Whoever loses can appeal to SCOTUS
vi. So:
7 SCOTUS 4
US Ct of appeals 6 3 State Ct of Appeals
1)
Fed Dist Court 5 2 Intermediate Appellate Ct
1 Trial Court
d. Getting to trial
i. Arrested, Complaint filed, or indictment
1) Indictment: Grand jury usually 23 citizens who come to court to hear evidence from prosecution. Hearsay
is allowed.
a) True bill of indictment gets drawn by the grand jury
ii. Arraignment
1) Right to counsel
2) Right to discovery
3) Charges and rights are read to him
4) Purpose is to get a plea
a) You can abstain
iii. Motions
1) e.g. motion to suppress evidence, supress confession, or identification (line‐up)
a) e.g. motions to sever case, etc.
iv. Hearings
1) Preliminary hearings
2) Motions hearings
v. Trial
vi. Sentencing
e. 14th amendment
i. Incorporates bill of rights into states through word "liberty"
f. Right to a jury trial
i. Is it a fundamental right?
ii. Duncan v Louisiana:
1) "Fundamental" concerns whether it's fundamental to one's fundamental sense looking at history, tradition
and values; in that sense jury trial is fundamental
iii. 12 person jury is not fundamental
1) 6 is the key number in Georgia
I. Generally:
a. Exclusionary rule kicks in with a violation of the 4th amendment (so after you determine
whether there's been a violation of search and seizure rule)
b. Remember, all applies to public authorities/agents of the government, so Kmart security
searching you is not a 4th amendment violation, unless of course some officer held him to it.
II. WOLF V. COLORADO
a. 4th amendment is fundamental to our system, and 4th amendment should be applied to
states
b. Weeks v. US
i. Because exclusionary rule is not in 4th amendment, no need to apply to the states
c. Issue: Must a state exclude in prosecution's case evidence if it determines the 4th
amendment was violated in obtaining that evidence
i. Is the exclusionary rule part of the 4th amendment's fundamental
d. Court: Exclusionary rule does not apply to the states
e. Rationale:
i. You can file a civil suit!
1) Civil suits in practice don't work too well
ii. Exclusionary rule is not in the 4th amendment, it was judicially crafted
III. MAPP V OHIO
a. Facts:
i. Police go to house where resident was suspected of bomb‐making
ii. Police had warrant for bomb‐making equipment, but Mapp was a pornographer who
didn't know anything about bombs. Police found stuff related to the porn
iii. They were going to use the pornography against her even though they had no warrant
b. Issue: Whether evidence obtained in violation of the 4th amendment should be excluded at
the state level?
i. (Should the exclusionary rule be applied to the states?
c. Court: overturns Wolf, exclusionary rule applies to the states (BUT EXCLUSIONARY RULE
APPLIES WITH EXCEPTIONS… see cases below)
d. Rationale (behind the exclusionary rule):
i. Deterrence: send message in the future to police that they must conduct proper
searches and seizures
ii. Judicial integrity: Having courts embody the law, so they should use only evidence
that is legally obtained.
IV. US v LEON (The good faith exception)
a. Issue: Whether evidence can be used when the search warrant is later found to be invalid
b. Court: When police get warrant (and only when they get a warrant), if the search and
seizure violated the 4th amendment, but search and seizure was done in good faith but
warrant was insufficient, when the prosecution shows that it was not obtained in good faith,
it can be included into evidence.
c. Rationale:
i. Deterrence: purpose of the exclusionary rule is deterrence, and if we suppress
evidence based on a warrant (where judge finds probable cause) it doesn't go toward
deterrence because the officer did nothing wrong! Also won't have any effect on the
judge because judge doesn't have the goal of fighting crime and convicting a
defendant. Though there may be some deterrence that can flow to judges because
judges don't like to be reversed!
ii. If officer acted in good faith, this can save the evidence
I. Generally:
a. What constitutes a search, or Is it a search? Depends on whether there is a reasonable
expectation of privacy.
b. Test of whether it violates 4th amendment at this stage is "Is it a search?"
II. KATZ v. US
a. Telephone booth, does wiretapping constitute a search?
b. Facts: Defendant transferring wagering information over the phone (placing a bet over the
phone in a public phone booth)
c. Court: violation of 4th amendment, it was a search
d. Reasonable expectation of privacy: phone booth is like the bedroom, though it's not
necessarily the place but the expectation that you will not be spied on over the phone in a
phone booth
i. Subjective: Does defendant expect privacy? (i.e. shutting door on phone booth)
ii. Objective: Reasonableness, whether other people would expect there to be privacy?
(i.e. you should know someone can hear you in an open phone booth, i.e. shut the
door would permit reasonable expectation)
e. Stewart: "the 4th amendment protects people not places"… "what he seeks to preserve as
private even in an area he perceives as public"
f. HYPO: Police work out deal with bookie to listen in on his coversation with Katz. Is this a
search? It this an illegal search?
i. Common law considerations:
1) Property: Bookie owns conversation and can share it once he gets it from Katz
2) Torts: assuming the risk when speaking to another person that someone will
overhear you and you take that risk
g. DOUBLE CHECK THE RULE ON THIS
III. CALIFORNIA v. GREENWOOD
a. Garbage, no expectation of privacy
b. Facts: Police ask garbage collectors for trash
c. Court: Not a search because there's no expectation of privacy
i. Expectation of privacy does not exist with garbage.
d. Rationale:
i. People can go through your belongings in the trash when it's out on the curb. That's
why people shred documents.
e. Hypo: what if trashcan were on his driveway? Probably not, and even if it's in your house
against your house. But if it's in your house, perhaps. Even if you put drugs inside a million
containers then place it in opaque container, still no expectation of privacy.
IV. ABANDONMENT:
a. Look at act and the intent of the actor to determine whether there is an abandonment
b. It's a volitional act, and with respect to privacy, it is no longer a search because no longer
expectation of privacy when there is abandonment.
V. VENNER v STATE OF MARYLAND
a. Excrement
b. Facts: Drug mule, admitted into hospital and nurses collected excrements
c. Issue: whether balloons with drugs inside were admissible
d. Court: invoke abandonment
i. Swallowing the drugs is a volitional act and there's an implied intent to abandon the
drugs.
VI. BOONE
XIV. US V PLACE
a. Canine sniffing by well‐trained narcotics dog
b. You have an expectation of privacy in your suitcase
c. Court: dog sniffing it not a search.
XV. ILLINOIS V CABALLES
a. Dog sniffing a car a search?
b. Court: No.
XVI. Kmart employee example… private search, doesn't compel 4th amendment analysis
XVII. KNOTTS & KARO
a. Electronic tracking (beepers) dealing with whereabouts in a public area
b. Knotts: Never went inside the home. Place a beeper on the car to trace his whereabouts. D
was saying
i. Court: Police were augmenting their senses and they have to right to follow or
seveillence you in public. There's no difference if they put a beeper on the car.
c. Karo: READ AGAIN
d. Was a search because it intruded into home
e. Issue: reliance on the beeper. Is the beeper just a replacement for tracking someone
visually, like in public?
XVIII. DOW CHMICAL v US
a. Arial photograph of a chemical company's industrial complex
b. Court: not a search
i. What they were looking for and how they were looking were different.
ii. REVISIT THIS CASE.
XIX. Generally
a. There must be:
i. Probable cause
ii. Warrant
I. Perspective
a. Reliability: Should we believe the informant? (Heart side)
b. Basis of knowledge: where did he get info and how does he know what he knows.
II. Generally
a. Applies to all searches and seizures
b. Searches based on warrants, did magistrate understand reliability and basis of knowledge?
c. 2 parts to a warrant
i. Affidavit (where probable cause exists)
1) … can be written by someone other than the informant
d. Probable cause means more likely than not.
III. 2 PRONGS: (see handout)
a. Reliability Factors:
i. Past relationship
ii. Declaration against penal interest (e.g. "I bought drugs on this street!")
iii. Independent corroboration (e.g. officer corroborating what the informant told him, or
the informant having a history)
iv. Sworn statement
v. Sworn statement by someone whose status makes them inherently more reliable (e.g.
victim, police officer, etc.
vi. e.g. Least reliable is the anonymous informant
vii. Reputation of the defendant (e.g. defendant is a known drug dealer)
viii. Details are predictive
ix. Special knowledge (not everyone would know)
b. Basis of Knowledge
i. (2 ways to show knowledge)
1) Sensory perception
a) (seeing something first hand can show ones basis of knowledge)
b) Or hearing someone say something, or feeling or tasting the drugs
2) Detail
a) Can substitute sensory perception
IV. Test for probable cause always called Aguilar test: must have information about why the person is
reliable as well as basis of knowledge
V. Spinelli v US
a. Facts: informant says Spinelli is a book keeper and travels between states
i. Police corroborate phone numbers informant provided
ii. Spinelli was also going in and out of his house, which police corroborated
iii. Reliability? Yes, officers were corroborating details provided by informant.
iv. What's missing? Basis of knowledge of informant…
1) ANYONE could have known what informant knew (knowing address, phone
numbers, etc.)
2) Basis of knowledge not demonstrated by these details.
b. Court: Not sufficient to make it more likely than not that defendant was engaged in
gambling…
i. details need to be particular or unique?
VI. Draper v. US
a. Facts: FBI goes to train station and see defendant coming off train information predicted he
would
b. Details provided basis of knowledge because it showed reliability (informant was named and
Warrant exceptions: See handout
Trial Court denied passenger’s motion to suppress evidence because it came from an illegal arrest.
Court of Appeals reversed, holding that absent specific facts tending to show D’s knowledge and
dominion or control over the drugs, the mere finding of the drugs was insufficient to show probable
cause for arrest in possession. However, the officer did have a probable cause to believe a felony was
committed, but not for arrest for possession.
ISSUE: whether the officer had probable cause to believe that Pringle committed that crime.
Totality of circumstances… more likely than not… probably cause
Distinguished from bar where customer and relationship with bar was not enough.
So, when person's name is NOT ON THE WARRANT: Connection to location and people actually searched
are major considerations
Yabarra v. Illinois – police officers obtained a warrant to search a tavern and its bartender for evidence
of possession of controlled substance. HOLDING: Pat down searches of all patrons was held to be
unconstitutional absent an individual suspicion.
Wyoming v. Houghton – HOLDING: a car passanger will often be engaged in a common enterprise with
the driver, and have the same interest in concealing the fruits of the evidence of their wrongdoing.
***it was reasonable for the cop to think there was a common enterprise among the three men.
Di Re – where an informant told the police that he would be given illegal coupons, the police steaked
out the situation, and the person who gave the cupons was a passenger in a car which DiRe was driving.
The officers hd no info implicating DiRe’s possession of the cupons, unless presence in the car warranted
that inference – therefore, the officers lacked probable cause to believe that he was involved in the
crime. HOLDING: “Any inference that everyone on the scene of a crime is a party to it must disappear if
the government informer singles out the guilty person.”
HOLDING: the officer had probable cause to believe that Pringle had committed the crime of possession
of a controlled substance.
Notes and Questions
1. Leavell v. Commonwealth (1987) HOLDING: the person who owns or exercises dominion and
control over a motor vehicle in which contraband is concealed is deemed to possess the
contraband.
2. State v. Thomas (1992) ISSUE: if the same facts can be used to implicate more than one person in
a crime that could have been committed by one of them, can probable cause be found to exist?
HOLDING: Yes.
Other Sources of Probable Cause
2. Direct observations by police – probable cause determination must be made solely upon
suspicious conduct observed by police.
a. Brooks v. US (1960) – the probabilities must be measured by the standards of the
reasonable, cautious and prudent peace officer as he sees them, and not those of the casual
passerby”
3. Information and orders from official channels
a. Whiteley v. Warden (1971) – a description in a police bulletin for two men caused a police
officer who recognized them to arrest them. The warrant was not made on probable cause
but. HOLDING: the arrests were legal because the officers reasonably assumed that whoever
authorized the bulletin had probable cause to direct the arrest.
i. OVERRULED: otherwise illegal arrests cannot be insulated from challenge by the
decision of the instigating officer to rely on fellow officers to make the arrest.
b. In Evans they distinguished whitely – which says whitely is still good law. LOOK FOR
SOMETHING IN KJ’S or JOSH’s NOTES ABOUT THESE TWO CASES.
Search Warrants
1. The “neutral and detached magistrate” requirement
a. Coolidge v. New Hampshire (1971) a warrant for a defendant’s car was (ambiguously)
issued. HOLDING: this violaqted a fundamental premise of both the 4th and 14th. ??? MUST
BE NEUTRAL.
b. Connally v. Georgia (1977) (GROSSMAN’S FAVE CASE – I DIDN’T GET INTO IT) – p. 307
c. Rooker v. Commonwealth (1974) HOLDING: where a judge issues a search warrant based
upon an affidavit which he does not read, he makes no determination of probable cause but
merely serves as a rubber stamp for the police. This is improper even though the affidavit
actually shows probable cause for the issuance of a warrant. NO RUBBER STAMP.
d. Shadwick v. City of Tampa (1972) HOLDING: a warrant issuing magistrate must meet two
tests:
i. He must be neutral and detached
ii. He must be capable of determining whether probable cause exists for the
requested arrest or search.
e. US v. Davis (1972)
2. Particular descriptions of the place to be searched –
a. 4th amendment requirement: requirement of particularity in the description of the place to
be searched and item. How reasonable was the description and how reasonable was the
execution?
b. It is enough if the description is such that the officer with a search warrant can, with
reasonable effort ascertain and identify the place intended”
c. Steele v. US (1925)
d. State v. Blackburn (1973)
e. Maryland v. Garrison (1987) police obtained a search warrant to search the person of one
Execution of the Warrant
1. Time of Execution –
a. Within 10 days:
i. US v. Nepstead (1970) – execution within the time is proper, provided that the
probable cause recited in the affidavit continues until the time of execution,
giving consideration to the intervening knowledge of the officers and the
passage of time.
b. Night time/Day time
i. Generally – search warrants may be served only in the daytime.
ii. Gooding v. US (1974) HOLDING: the federal statute relating to searches for
controlled substances required no special showing for a nighttime search other
than that the contraband is likely to be on the property at that time.
c. No one is home
i. US v Gervato (1973) rejected the holding that: a search warrant executed in the
absence of an occupant constitutes an unreasonable search bc there exists the
possibility of a general search of pilferage by officers of law.
1. Sneak and Peak Search Warrants – authorizing police to enter premises,
look around, and then depart without leaving any notice of the search, are
directly executed when it is known no one is present.
ii. Berger v. NY – imposed two limitations on sneak and peak search warrants:
1. The court should not allow the officers to dispense with advance or
contemporaneous notice of the search unless they have made a showing
of reasonable necessity for the delay; and,
2. The court should nonetheless require the officers to give appropriate
person notice of the search within a reasonable time of the covert entry.
2. Gaining entry
a. Winson v. Arkansas (1995) – commonlaw doctrine that a police officer is required to
knowck and announce, but then is ok to break down the door.
b. Richards v. Wisconsin (1997) – rejected supreme court’s holding htat po are never required
to knowck and announce when executing a search warrant in a felony drug investigation.
Special Problems: Computer Searches
1. Police are with increasing frequency using search warrants to seek information stored on computers, give
rise to special problems.
a. State v. Evers (2003) a detectives search warrant affidavit indicated that after entering a child porn
chat room he received an email of child porn froma sender with a certain screen name and which aol
provided the billing address.
i. ISSUE: whether the police may issue a warrant for that address.
2. US v. Riccardi – police got a warrant for a computer and all items within.
3. US v. Hudspeth (2006) – a warrant for search business records logically and reasonably includes a search of
computer data.
a. People v. Gall (2001) – authorizes and prefers taking the computer to search it at another location.
4. Gall ‐ must a second warrant be obtained for a computer when a second warrant isn’t needed to take a
filing cabinet?
5. Arizona v. Hicks – the mere recording of the serial numbers idd not constitute a seizure because it did not
interfere with the possessary interest.
a. What about recording the contents of the hard drive and leaving with it?
6. Limited in Intensity
7. US v. Gourde (2006) pg 221
322‐325
I. Warrant exceptions
II. US v Watson
Warrentless Arrests And Searches of the Person
US v. Watson (1976)
Background: informant told federal postal inspector that Watson supplied him with a a stolen
credit card and agreed to give him more. Informant signald officer where officer arrested Watson
without a warrant as he is authorized to do.
Exigency exception: e.g. seizing a suit case with probable cause and they hear a ticking bomb… or
if someone is running away. Doesn't apply in this case
Court of Appeals: held the arrest unconstitutional because the inspector had time to get a warrant
and he did not. Nothing indicates that a warrant is needed for a valid arrest for a felony.
Supreme Court: Prefer a warrant if possible, BUT the balance struck by the common law in
generally authorizing felony arrests on probable cause, but without warrant has survived,
substantially intact.
Congressional statute alone cannot be dispositive, but court uses it as a factor.
We now allow seizures in public without a warrant when (or if you are arrested where you do not
have an expectation of privacy), you do not need a warrant.
a. You and expectation of privacy are operative terms: so you would not have expectation of
privacy in another persons home even though you are inside a home.
CONCURR: MARSHAL? STEVENS?
Considerations: (1) whether the privacy of our citizens will be better protected by ordinarily
requiring a warrant to be issued before they may be arrested; and (2) whether a warrant
requirement would
I. Atwater v City of Lago Vista
a. Facts: Woman driving with kids in front seat without seatbelts. She didn’t have her purse
and she was arrested.
b. Court: intent of framers is unclear
i. Something
II. Tennessee v Garner
a. Extent of a seizure
b. Facts: There was a seizure (arrest) when there is deadly force used in a pursuit…. Seizure
was lethal
c. Court: even with probable cause, the seizure can go too far.
i. Factors: dark, night, circumstances of the crime (grave life threatening crime
committed)
ii. This means deadly force more reasonable
d. 4th amendment is involved not only whether there was a seizure, but also the EXTENT of
the seizure
III. O'Conner case (review)
SEARCH INCIDENT TO A LAWFUL ARREST
I. US v ROBINSON
a. What a search incident to an arrest involves
b. Facts: Defendant driving around DC without a proper permit. Officer pulls him over, full
blown search: finds a cigarette pack… finds drugs inside
c. Def: they didn’t have probable cause or justification to search him. Not even a suspicion.
They were arresting him after revocation of his operator's permit.
d. State: because they were going to arrest him and detain him, they needed to search him for
weapons and conserve evidence for trial. (these two purposes of full blown search versus a
pat down which is just for weapons).
e. Court: police need no more probable cause to conduct this search despite it only being
pulled over for
i. Determining extent of search: you look at purpose of the search (pull a weapon or
destroy evidence)
1) So here, police could search in his pockets or anywhere he can reach… can
search wallet and cigarette pack.
ii. If the arrest lacked probable cause, then the search would be illegal (here, search was
incident to a lawful arrest)
II. GUSTAFSON v FLORIDA
a. Court: Doesn't matter how minor the offense is, any arrest can justify a lawful search
i. Policy: simplicity for officers
III. ATWATER v CITY of LAGO VISTA
a. Defendant: saying she can’t go to jail for this offense, so why is arrest justified?
b. Court: Difficult for officer to make a determination on the severity of the offense and
whether its jailable?
i. Difficult for officer to know prior record
ii. Officer's discretion: want to limit this to prevent abuse
The automobile exception
o generally don’t need a warrant, only probable cause
o Not every search of auto leads to automobile exception.
o Has nothing to do with whether there is an arrest.
o Automobile exception IS:
An exception to warrant rule, not probable cause rule
When police have PC to believe there is evidence of crime in auto (drugs, gun, etc),
they can search anywhere in auto where evidence could be w/o warrant
Arrest whether made or not made is entirely irrelevant to whether auto exception
applies
o Carol v. United States
Carol was a bootlegger. Police had information he was illegally carrying
alcohol in his car. It looks weighed down. They have probable cause to stop Carol’s car
on the highway, do a search, and find the bootlegged whiskey, but never had a
warrant. Carol moves to suppress because he believe the police needed a warrant.
The court creates the automobile exception as a result of this because:
Cars are inherently mobile; and
There is a possibility of destruction of the evidence.
o So police were relieved of warrant requirement, almost like
exigency
o Chambers v. Morolman
Armed robbery of a gas station; police have reason to believe the robbers and
evidence of the robbery were in a car seen driving nearby shortly thereafter.
Meet carol test of PC
The police stop the car and arrest the occupants. Didn’t search car on side of road, but
took car to police garage and searched there, do D argued no longer mobility, so auto
exception to warrant should not apply
The court said that because the exigency existed in the beginning, it still applied when
the car was searched in the impoundment lot, even when there is plenty of time to
obtain a warrant.
o Coolidge v. New Hampshire‐ this is a rare holding‐ a case limited to it’s facts
Child molestation and murder case in NH. Attorney General authorizes a search
warrant of suspect’s home. Everything found under that warrant was not permitted.
However, in dealing with Coolidge’s car, the automobile exception was thought to
apply.
The US SC said the exception did NOT apply because the car had been immobile and
the police waited an entire year before searching the vehicle.
They needed a warrant to search in this case, w/ respect to warrant requirement; but
all other cases say that auto exception applies
California v. Carney‐ Motorhome case
o Police questioned a youth leaving a motor home and he confessed to having bought
marijuana from within in exchange for sexual favors. PC met where youth made a statement
against his penal interest. The youth knocked on the door, Carney exited and the police
entered and seized the motor home. A subsequent search revealed additional marijuana.
o Issue: does auto exception apply to motorhome to let evidence in w/o warrant?
o The court said that the exception commenced because of the ready mobility of motor
vehicles. Generally, motor homes will be treated as motor vehicles.
This motor home was mobile, although not super mobile.
Also, b/c the vehicle is very heavily regulated by govt, there is a diminished
expectation of privacy, you already have let the govt intrude…
Periodic inspections, licensing requirements, etc.
“Pervasive regulation doctrine”: highly dangerous industries mean govt can
regulate them pervasively; b/c businesses are regulated so pervasively, they
have a diminished expectation of privacy
o The ct likens this doctrine to the regs that apply to vehicles and this
is justification in case
o As opposed to book bag which is mobile but not regulated, so
they'd need a warrant with probable cause.
Difference between searching cars and containers (for which police generally need a warrant) ‐ what
happens when there is a container in the car?
• Note: if police are looking for cocaine, they can look everywhere, but a bag of cocaine, well this
may be limited.
• General rule on containers: if you have a container in public, police can seize the container but
cant search it without a warrant
• Container in a car: automobile rule or container rule
• History:
o Chadwick: where you have container and container in a car, the container doesn’t lose its
expectation of privacy… so where you need a warrant to se
o Ross: same situation as Chadwick, but it depends on whether or not its treated as a
container and what probable cause goes to… if probable cause goes to car, then auto
exception.
o e.g. illegal substance in briefcase in car tip, and under ross you need a warrant here. BUT, if
tip is there's cocaine somewhere in the car, then police can search everywhere in the car.
• California v. Acevedo
○ Law b/f acevedo:
Chadwick and sanders‐searches of suitcases in cars; the PC went to the suitcase; there
was not evidence of crime in the car, it was actually in the suitcase; ct said police
needed warrant to open the suitcase even though no warrant to search the car
Ross‐the PC went to the car in general, including the suitcase; ct said it depends on
what the PC goes to—the car or the suitcase; if PC goes to the car, they can search car
and any containers w/o warrant
In Acevedo‐the PC went to the container, not the car
NEW RULE: Ct says law now is that no matter where Probable Cause goes to‐the car
or the container‐the police can open any container in car w/o warrant, the
containers need to reasonably contain the contraband at issue
○ Daza picked up a FedEx package the police knew contained marijuana and took it to his
apartment. Acevedo entered the apartment and left with the package, putting it in trunk of
his car. The police stopped him, opened the trunk and bag, and found marijuana.
○ A person expects more privacy in his luggage and personal effects than he does in his
automobile.
INVENTORY EXCEPTION to 4th amendment warrant requirement
Analysis Key: do police have procedures that they use all the time or does it look like they're doing
something different here?
• South Dakota v. Opperman– inventory exception to the 4th Amendment
○ Inventory search background‐inventory search is NOT a search; if police inventory your
items, and find evidence of crime, its NOT a search and it can be admitted against you
Despite no probable cause
Despite no reasonable suspicion
○ Car doubleparked in downtown SD; police towed car to impoundment lot; inventoried
contents of car, not just plain view, but containers; incontainers there was evidence of
stolen property; ct said the police did not have right to search your car, but they did not
search the car, they just “inventoried” the car
○ His car was parked in downtown SD. Opperman argued the police had no PC to look in the
items of his car because it was illegally parked. The police said it was an inventory search
only and so they didn’t need PC or suspicion.
○ Inventory searches of automobiles are consistent with the 4th.
○ Since then, SD has amended its Constitution to provide greater protection to the citizens.
• Colorado v. Bertine
○ The ∆ was arrested for a DUI. He was taken into custody and the car taken to an
impoundment lot. The officer’s inventories the van before the tow truck arrives. The officer
STOP AND FRISK
Terry v. Ohio
Landmark case
• Plainclothes detective observed 3 individuals casing a store in the afternoon
• Observed the men go back and forth by the store 24 times
• Police stopped the men, asked them to ID themselves, mumbled responses only
Patted down each of the suspects, 2 of them had pistols
o Mumbling is important because it didn’t dispel the officer’s suspicion… officers are
suspicious.
∆’s moved to suppress the evidence in the concealed weapons case
• D agmt: b/c Officer did not have PC and this search and seizure violated 4th Am PC requirement for
a crime in progress
Ct said a search and a seizure occurred here
• Seizure defined: “when a reasonable person feels his freedom to leave is
restrained”
When did seizure occur here precisely?
• When police approached D and said “stop” and Terry stopped, when Terry acquiesced to the
police, that is when the seizure took place
• At that time, what quantum of info did police need to justify the stop?
• Officer needed to have an did have “reasonable suspicion” that criminal activity was afoot; a belief
founded on objective factors to conclude that criminal activity is afoot
• Can be based on observations, inferences from experience, or other info that officer has about D
• “reasonable suspicion” is lesser standard than PC
• Terry is first case where ct said the stop based on reasonable suspicion is OK
• After the stop, b/c the D mumbled and did not ID himself, the police’s reasonable suspicion
continued
• If the suspect dispels the suspicion that originally permitted officer to undertake the detention, then
the officer must let him go
• If not, it will continue
• When can the pat down occur?
• Requires a second articulable suspicion, that police has articulable suspicion that suspect is armed
and dangerous
• This occurred b/c the D’s were not able to answer him
If during patdown, police does not find weapon, but finds drug shaped item instead, and reaches to
pocket to get the drug item, this is not authorized, to reach into the pocket, the police needs PC which he
would not have at this point
• This is because “stop and frisk” is a limiited search (“pat down”)
2 levels of seizure here:
• Stop
• Arrest
Just like there can be two full blown searches
• Full blown search, like checking a suit case or a pocket
• Limited search, patting down the pockets
o A second, suspicion is needed to warrant a patdown. Nature of the crime itself here gave
officer that suspicion
Hypo‐what if he smells marijuana as retrieving the weapon‐the smell gives him
Purpose has to be to look for weapons and within scope of the search, probable
cause arises when he smelles the marijuana
SEIZURE: definition above isnʹt so helpful.
Full‐blown seizure: When a persons freedom to leave is restrained in a significant
way (Terry seizure, but in a significant way)
ARTICULABLE SUSPICION:
Florida v. Bostick
Two officers with badges and visible weapons boarded a bus
Asked ∆ for ticket and ID, then requested his luggage and asked his consent to search
where drugs found
o Even if the consent made the search valid, if the initial seizure was invalid, then the
evidence should not be admitted
What is definition of seizure as it applies on a bus?
o “Would reasonable person feel free to decline the officer’s request or to terminate the
encounter?”
o “free to leave” as the old seizure definition does not work on a bus b/c there are reasons
other than the police for passenger on bus not to leave, they don’t want to get off bus
and miss the bus and delay their trip
Police don’t need to advise you that you can withhold consent to search
Court: refusal to speak doesn’t justify raising officer suspicion
Takeaway: need to look at circumstances. The seizure definition doesnʹt really stand on
its own.
Seizure is more then officer saying ʺhello, Iʹd like to ask you a few questionsʺ
• Need more than that to be a seizure because you can walk away in the courtʹs
opinion.
• There needs to be something more like putting hand on shoulder or something
else.
US v. Drayton
Another bus case
3 police boarded bus and stood in front, back and one walked down aisle speaking with every passenger
Police asked D’s if they consented to search of bags, no drugs found, and then police
asked D’s if they consented to search of their person which they did
Again, the search was legal b/c consented to, but was the seizure that initially led to the search lawful?
What is definition of seizure as it applies on a bus?
California v. Hodari
Another aspect of seizure… changed definition a bit.
Hodari fled upon seeing an approaching police car
As the police chased the suspect on foot, he threw a small rock which when retrieved it
was cocaine
Note: he abandoned the property, so it should be admissable, but if the abandonment
was based on a coerced, illegal seizure, what flows from illegal seizure shouldbe
suppressed (coerced abandonment)
If it was a lawful seizure, then it could be abandonment, so was there a seizure?
Court: No seizure
o Police never put hands on D
o D did not comply with their authority
o Had Hodari submitted to authority and stopped, he would have been seized
Officer saying stop and chasing you down street is not a seizure, he needs to say stop and you need to
comply for it to be a seizure (Terry)
Stop and chasing down street is not a seizure, and so 4th Am does not apply… he had not yet acquiesced
and stopped.
Def of seizure: police lays hands on you or you acquiesce to police request to stop/submit to
authority
• So ʺnewʺ definition is when a reasonable person doesn’t free to leave and
acquieces or is actually grabbed?
Hypo: firing a shot at someone doesn’t implicate the 4th amendment because officer
hasn’t grabbed him and suspect hasn’t acquiesced to stop.
Brendlin v. California
Traffic stop
Are the passengers seized as well as the driver?
Court: when you stop a car, everyone in the car is considered seized.
o Seizure: reasonable persons in the passenger position would NOT believe themselves to
Sibron v. New York
A police officer watched Sibron for 10 hours
Saw him speaking to known addicts, never heard any conversations
Followed him in a diner and asked him to come out
Told him you know what I am after, and he and Sibron reached into Sibron’s pocket at
same time and uncovered drugs
Issue: Did police have articulable suspicion to make a Terry stop and frisk?
First question: was there a seizure?
• Second question: When did the seizure occur?
o We need to figure out whether there was articulable suspicion to make a
Terry stop and frisk
When the police asked the D to stop and the D acquiesced (Hodari)
• After Hodari, he was seized after he was asked to go outside then he acquisced…
at that point he is seized
Court: No articulable suspicion at that point.
o No grounds for the stop just because he saw him talk to addicts
o Improper manner of frisk
o Nature of the crime matters. Watching the guy for 8 hours and nothing dangerous
about this situation unlike Terry, where there was a armed robbery afoot.
o Terry purpose was to stop an armed robbery from taking place; but here, the nature of
the crime was not as serious and not as imminent, more serious and more imminent, the
more the articulable suspicion given will be adequate
Cortez (not covered)
Articulable suspicion
o Look at “totality of circumstances”
• e.g. if description of the suspect is very general, then may not enough for
articulable suspicion, unless he starts behaving really funny, then maybe.
• Particularized suspicion means particular to that person.
o What can the officer take into consideration?
What he or she observes, hears, senses, feels
Any information the officer may have
Draw rational inferences
o Information must be particularized, must relate to the specific individual
6-Oct-08
Florida v. JL
Police received an anonymous tip that a young black male wearing plaid shirt was carrying
a weapon; they saw the D standing on the corner and approached and patted him down
and he had a weapon
Did this raise articulable suspicion?
Court:
• No. Anonymous tip has the lowest form of reliability
• Anonymous tips must predict future actions that predict the specific plan to
corroborate the story
• No corroboration in this case, anyone could call up and say what this anonymous
tip said… this is basis of the holding
• No predictive detaiils (contrast with below)
Alabama v White
Anonymous tip: woman is going to be leaving with drugs in briefcase. She drives to
place informant described.
Court: (probable cause but not articulable suspicion?) Why? details of anonymous tip
were predictive and corroberated.
What if tip is for terrorist wearing bomb? This is more serious crime than carrying
weapon?
o Prob police could pat him down; b/c bomb is more dangerous than gun; in Terry the
balance is state interest in public safety and personal interest in freedom from intrusion;
a bomb is a significant threat to public safety.
Midterm: covers 4th Am, won’t cover sub DP, terrorist, won’t cover administrative searches
(might be on final), it will be an essay question, you can type but need to download software,
use 7 digit student ID, “discuss all issues related to admissability of X evidence…”; need to
argue both sides; ID what is stop, seizure, analyze, conclude
*N-Z-take midterm in 212 on 10/8
Last class:
JL-black male on corner, that is not RAS even though gun dangerous-if bomb, things might be
diff
Sokolow-totality of circumstances
Hensley-Terry also applies to past crimes, not just imminent crimes, but crime needs to be more
serious
Wardlow-in high crime area, running away from police can amt to RAS
Royer-Terry detention escalated into full blown seizure; factors-if it extends a long time, if you
are taken to another place, especially if its isolated, if you are not told free to leave, if purpose of
police is consent, not getting a weapon
Sharp-20 min detention can still be under Terry if D was responsible for delay and if police were
diligent
Heibel-don’t worry about
Caballes, Robinette-what can happen during and at conclusion of terry search; dog can be
brought to sniff during traffic stop if traffic stop still in progress, b/c dog sniff not a search, as
long as the detention is not extended or intentified; asking for consent was allowed too
Van leeuwen-mail can be detained w/ RAS just like person, can be longer for mail than person
8-Oct-08
Fingerprints
o Davis v. Mississippi
Brief detention for investigation
Petitioner and 24 other young black men were detained at a police station for
questioning and fingerprinting in connection with a rape. The only evidence had
been the fingerprints from the crime and a general victim description.
Ultimately, Petitioner’s fingerprints matched and the evidence was admitted in
trial.
Holding: Ct held that here, the prints were a result of a seizure of petitioner that
violated the 4th Am, and prints should have been excluded.
But Ct indicated that a detention for a purpose of fingerprinting on less
than PC might be permissible
Fingerprinting in and of itself involved none of the probing into an individual’s
private life, not like getting the 3rd degree from the police in interrogation, it
can’t be used as a form of harassment b/c only need to be fingerprinted once
BUT here, the fingerprinting was intrusive b/c the police never even tried to use
procedures that would comply with 4th Am.
Fingerprinting + interrogation = full blown seizure.
The way they were detained was closer to an arrest because their
detention was not authorized and they were interrogated.
o You can fingerprint someone on scene of crime if you have RAS
o Police find a class ring at the scene of a crime. Ok to bring in all of the students from
that grade (there were 22 of them) because more selective.
o RAS is good enough to bring you to station to fingerprint you
o US v. Dionisio
Holding: the 4th Am is not violated by supoena of witness to come to grand jury
to give voice examplars
Don’t need PC or reasonableness to subpoena someone b/c subpoena is not a
4th Am seizure
Ppl do not have reas expectation in sound of their voice in the way they do in a
particular conversation, the public hears your voice everyday
• Dunaway v. New York- illegal seizure of confession
o Police suspected Dunaway of an attempted robbery and homicide, but lacked PC to
arrest; police picked him up for questioning; driven to police HQ and put in
interrogation room; read Miranda rights; questioned by police; waived counsel; within
an hour he gave incriminating statements.
o Issue: can D’s statements be used against him? The statements were let in as
evidence at his trial.
We deal w/ 4th Am b/c D said his arrest was illegal b/c it lacked PC
o Lower Ct said that officers could detain someone on RAS for questioning for brief
and reas pd of time under carefully controlled conditions.
o SCOTUS reversed
Distinguished Terry: this was the same as a traditional arrest, he was not
questioned briefly where he was found, but taken to police HQ
Never told he was free to go—ct said he would have been
restrained physically if he tried
o A full blown seizure is like an arrest.
o They have articulable suspicion to detain him but this was not like Terry, it was more
like an arrest just w/o the formality of arrest and to do it, they would have needed PC
detention for custodial interrogation-regardless of its label- intrudes so severely
on interests by the 4th Amendment as necessarily to trigger the safeguards
against illegal arrest.
o Ct thought that making this treatment an exception to PC requirement would just
o Camara
Deals with fire, health, housing code inspections
Agency found something in plain view
Plain view is a huge rule… they can seize it if they are in a place they
have a right to be, they sense it, and claim as evidence in a crime.
Agency had a general warrant (they didn’t know exactly which house had the
problem)
General warrants you need general probable cause (sometimes don't
need warrant at all if pervasively regulated?)
If occupant refuses to consent to inpection, authorities need to get warrant, and
PC is automatically present if the admin standards are being followed
Standards vary, but might be: passage of time, nature of blgd, condition
of area, not necessarily knowledge of specific blgd
The court held it was ok because…
Purpose not criminal activity
Limited intrusion
Historical acceptance of these searches
No other technique would let the agency do its job effectively; don’t want
to wait til the building burns down until you can search it
Therefore, it is a reasonable action on the part of the administrative agency.
o Michigan v. Clifford
Deals with firemarshals (not firefighters who rush in to save people in a fire)
who investigate cause of fire after its extinguished; marshall can go in w/in
reasonable time to determine cause of fire; but if he goes back in again and is
looking for evidence, then he is searching and needs PC, warrant/warrant
exception
o Marshall v. Barlow
Camara also applies not only to private dwellings, but admin agencies can get
warrants for business inspections too
Ct has also upheld warrantless business inspections
b/c Diminished expectation of privacy in certain industries because they
Consent Searches
o Schneckloth v. Bustamonte- when the ∆ consents to a search, it is valid if it is
voluntary (voluntary if there is absence of coercion)
A police officer stopped a car containing 6 men when he observed a
traffic violation, headlight out, licesnce plate light out. Asked driver for
license and he did not have one, then officer asked passenger who said
he was owner’s brother if officer could search the car; passenger said,
Sure.
Found stolen checks under the seat, and charges made against
Bustamonte.
Issue: What must the state prove to demonstrate consent was voluntary?
Does defendant have to be told he can refuse consent? Corut: No.
A search authorized by valid consent may be the only means of
obtaining important and reliable evidence.
Consent may not be coerced, by explicit or implicit means, by
implied threat or covert force.
Knowledge of the right to refuse is not dispositive
Voluntariness for this purpose is absence of coercion- so ∆ doesn’t have
to know he has the right to withhold his consent- it can be considered but
is not dispositive.
If you told everyone they had the right to refuse, they would refuse.
What actions did the police take, words did they use, etc. to
demonstrate coercion, or lack thereof.
The court distinguishes between trial rights and non-trial rights.
If it goes to a fair trial, then it is more imp than this, innocence or
guilt more important than admissability of evidence
Also diff from miranda, b/c custodial interrogation situation is more
coercive than consent to search car
The ∆ does not need to know that he has a right to refuse consent in
order to determine his consent involuntary (although it may be a factor).
Would a reasonable person feel like they had no choice but to consent?
We look at the totality of the circumstances, i.e. looking to whether
consent was voluntary:
Did they indicate to him in some way that he had to consent
◊ Did they use force
◊ Did they show authority/say something that would be forceful
◊ Did they lay their hands on him
See bottom pg. 450:
◊ Any defenedant that's subject of search….
o Just telling the defendant he can refuse consent would
eliminate this as a defense!
o Bumper v. NC- Went to the house of the ∆’s grandmother. They said they had
a warrant to search, so she let them in. It turns out there was no warrant. The
court held it was not voluntary consent, but mere acquiescence to authority.
the consent was not “voluntary”
HYPO: if police says if you don’t let me search, I will get warrant, this is
prob not going to be coersion if they really have PC and could get that
warrant
o When a ∆ is in custody and chooses to give consent- unclear how the US SC
Georgia v. Randolph
o Limit of 3rd party consent
o "Yes" and "No" to search
o The husband did not consent to search of the house for drugs, but the wife did.
They seized drugs upstairs in the bedroom which were in plain view.
o This was an invalid consent search- where people living together disagree over
the use of their common quarters, a resolution must come through voluntary
accommodation. The non-consenting party who is present must be honored.
Court looks at reasonableness.
The more reasonable person honors the individual who says no.
Ct looks at it like any guest—if one person tells the guest no, can’t enter,
and one person tells the guest yes, can enter, the reas. guest would not
enter, so police should act the same way
Where there is a parent and child, and child says no, cops will probably
go with parent. Where a spouse is beating on the husband who is saying
no, the cops probably can search there too.
o HYPO: The non-consenting party is not there. Police actually plan it that way
b/c they know he would not consent. The police may accept the consent of the
wife to enter and search b/c non-consenting party is there.
If police ask hub consent, he says no, and then leaves house, police
approach house 10 secs later and wife consents, randolph would control?
If one party is not there, then probably too bad for the defendant who
would have sayid no.
Consent can be withdrawn at any time and police must leave
Hoffa v. United States
o Jimmy Hoffa-connected to organized crime/mob
o Hoffa had a trial and jury was hung; evidence that Hoffa tampered w/ the jury;
so there was a new trial; Partin was in mob too and was in trouble for an
unrelated offense, so he worked with govt to inform on Hoffa about
conversations they had in Hoffa’s hotel about the jury tampering
o Hoffa argued this was an illegal search: Partin’s entry in hotel for the purpose
MidTerm Exam
I. (discuss admissibility of A, B, & C, and do it in order)
II. Most important thing is spotting each issue on his exam
III. 60 minutes
Network Surveillance
-person has expectation of privacy in computer; if you hook into network like school, you
maintain expectation of privacy in emails or sites visited, unless operator of network informs you
they are monitoring you, then there is no expectation of privacy; in a business, no 4th Am
protection, b/c 4th Am only protects govt action, so only if you work for govt; statutes limit
businesses
If they tell you we are monitoring your emails, you have no reasonable expectation of privacy?
Historical roots:
Wiretapping
Olmstead v. United States- pre-Katz
o Wiretapping D’s phone did not constitute a 4th Amendment search.
o Ct says diff btwn phone convo and sealed ltrs; govt only listening to their words- no
trespassing- and because a word is not a thing, you are not searching it; it is not a
tangible property effect (this was back when 4th Am protected property, pre-Katz)
o Katz & Berger
Federal gov’t and a number of states began to experiment with the use of
various wiretapping techniques; state statutes limited what police could do;
after Katz ct took a look at if these statutes were const under katz
Berger
First statute to authorize government wiretapping.
Ct said NY wiretapping law did not provide sufficient protection- it did not
make clear which particular conversation the gov’t had a right to listen to
so they could listen to as much as they wanted to, did not ID the crime the
conversation implicated (lack of PC, particularity requirements in warrant
requirement); police could listen for 60 days, could easily get a renewal,
no requirement to stop the tap after the key conversation was heard, and
finally there was no requirement to tell the ∆ what convos were tapped
and why.
NY statute was unconstitutional
Now, the warrantless interception of telephone calls normally will violate the 4th
Amendment absent special circumstances such as consent to monitoring.
OMNIBUS CRIME CONTROL ACT-Title 3 (18 USC § 510)- the portion that deals with
nonconsensual communications (think wiretapping)
o Protects above and beyond the 4th Amendment.
o If states want to wiretap, the state must have a statute that provides at least as much
protection as Title 3.
o When does Title 3 apply?
Applies only to protect non-consensual interceptions of recorded conversations
(no party consents to recording)
If one party consents, then no problem
In MD, statute says that all parties must consent (more protective)in order
for there to be a recording
ONLY affects wire oral conversations
N/A to video tapes w/ no sound
o If the gov’t comes in and sets up a video camera to monitor,
that does NOT violate title 3 because it’s not oral; would still
implicate 4th
N/A to Pen registers: gov’t keeping track of the numbers you dial on your
phone does not deal with title 3.
o There are special designations within the title as to who can get Title 3 orders or
US v US dist ct. broader discretion with permission of FISA judge. FISA order must be directed
at a foreign power or agent must show:
- Parties involved are the kinds of parties that threatened the US.
- Other stuff
- NOT TESTED
Confession
Evidentiary significance of certain terms
o Statement- anything that defendant says
o Admission-anything that defendant says which may be inculpatory; “I was there, but
did not shoot”;
any statement that partially inculpates someone or can be interpreted as
partially involving them in a criminal activity
o Confession-you tell police you committed every element of the crime
= a statement and an admission which tell the police enough to give them
probable cause to arrest you.
If a confession is allowed, so is a statement and an admission.
This is because a lot of times, those exculpatory statements are really
helpful to the prosecutor.
For constitutional purposes, the rules are same for statements, admissions, and
confessions
Four ways to challenge/attack statements by defendants
o 5th Amendment
“classic coersion/compulsion”-beating statement out of D
Can even mean not allowing to go to bathroom, etc.
o 5th Am-Miranda specifically
o 6th Am-Denied the right to council
o 4th Amendment- illegal search or seizure (flowing from a 5th/6th violation)
Dunaway case: defendant picked up and under full seizure, without probable
cause, seizure was violation and confession flowing therefrom was illegal.
History of Confessions in the United States
o Initial approach: “Reliability”
In old days, statements could be beaten out of someone so long as it could be
shown to be “reliable.”
Reliability could be shown by extrinsic evidence.
Constitutional Protection of Due Process- unfair to use a statement poven to be
unreliable.
o “Police Method” Analysis
Even if statement “reliable,” would not allow statement in if extracted by
“coersion”
If the method was so outrageous then the statement could not come in
regardless of its reliability.
Became tougher when police started using “psychological” methods
Ex: bright lights in eyes, isolation, good cop/bad cop
Polygraphs-prof says they are junk
o 5th amendment
Prevents a person from being a witness against himself
The trilema: on the stand, I did it = guilty, I didn't do it = perjury, I'm not talking =
implied guilt
6th amendment? Guarantees right to counsel, used to only be when
prosecution began
Ashcraft
44 hour interrogation too long to be reliable.
McNabb-Mallory Rule
27-Oct-08
Review:
-confessions/admissions/statements-can be suppressed under 5th Am/14th Am-DP, classic
coersion; 5th-miranda; 6th-right to counsel; illegal search/seizure that led to confession under 4th
Miranda
Miranda is a 5th Amendment case-right ag self incrimination
o Up until that point, the cases like Miranda had been decided as 6th Amendment
cases (right to counsel)
o 6th Amendment- applies when someone is indicted or arraigned…. Not when
someone is arrested
o Miranda not indicted/arraigned, so the 5th is applied- one does not have to testify
against oneself.
o When Miranda talks about the 5th amendment, it talks about the right to counsel
being implied into the language of self-incrimination
o So, 5th amendment now:
The nature of custodial interrogation is inherently coercive b/c of isolating the ∆, separating him,
surrounding him by the police. revolution #1
o There is compulsion present every single time a D is in custody
o This happens all the time. This means the instant he is sequestered there is natural
coercion.
o Even if Miranda is not technically a witness, the fact that what he says will be used
later in court, then it’s like he is being a witness against himself. One can be a
witness against oneself. revolution #2
The “inherent coercive nature” (b/c person all alone, anxious) of the custodial interrogation
makes it such that a person cannot protect their 5th Amendment right ag. self-incrim w/o the
right to have an attorney present. novel holding #1
o Applies ONLY in a “custodial interrogation”
CUSTODY: Same definition as “full-blown seizure” under 4th –would
“reasonable person feel freedom restrained in significant way?”
Factors for custody same as 4th limited seizure becoming “full-blown seizure”
Take you somewhere else, is it private interrogation room, how many
police, told free to leave, if police intent to get you to consent to search
Custody ALWAYS applies self-incrimination compulsion clause
Interogation ALWAYS applies self-incrimination witness clause
Hypo: If police knock on your door and ask you something, then you don’t need
Miranda, b/c you are not in “custodial interrogation”
Holding: when D in custody, and he is being interrogated, and statement/admission/
confession govt wants to use as evidence in case in chief, before they can use, they
must show D was given 4 Miranda warnings, and that he made knowing, intelligent,
voluntary waiver of rights given under those warnings
o 4 warnings: (prof takes judicial notice that we know all 4 warnings from law & order)
right to remain silent, anything he says can be held against him, he has the
right to counsel, and if he cannot afford it, it will be afforded to him, do you
understand the rights?
o Everyone gets ALL 4 rights each time- never presume they know the rights
Bright line rule-if police doesn’t tell bill gates that atty will be provided if he can’t
afford it, then confession OUT
o If a ∆ is not asked a question, then it is not an interrogation. One must be in custody
and be interrogated for Miranda to apply and for a statement to be inadmissible.
It must be in response to a question posed by police that related to crime
Hypo: this can come in w/o Miranda even if D in custody-what do you want for
lunch? Anything but poison I gave my wife
No miranda because the question was not meant to illicit a response.
o Not: all statements inadmissable w/o Miranda warning
Omnibus statute-congress said certain holdings of ct were not valid; including Miranda (basically
overturning it)-said all confessions which were voluntary are admissable; but no one in DOJ
tried to use this act b/c it was legally disrespected, then came Dickerson
Dickerson
Tried to use the omnibus act to get in a confession that violated Miranda, but complied with the
omnibus
o Big Issue: will ct enforce the omnibus or miranda?
Dickerson made a statement in custodial interrogation and it was found inadmissible. He had
been indicted for some incriminating statements made at an FBI field office. The 4th Circuit
Court of Appeals found that § 3501 had been satisfied even though no Miranda warnings and so
29-Oct-08
Review
-Miranda-rev #1-priv ag self incrim which requires compulsion, that compulsion was present
EVERY time there was custodial interrogation; rev#2-5th Am applies even at police station, not
just on witness stand, b/c officer in ct will later use your testimony in ct; applies when D in
custody and interrogated; same factors for custody as full blown seizure; AND interrogation-will
look at today-the question relates to the crime; if Miranda applies, how to police adhere? Police
must give D 4 miranda rights EVERY time and D must knowingly, intell, voluntarily waive the
rights (more than silence, but not much) b/f any statement can be used in crim trial; D can stop
at any time and police must honor his right to silence or counsel even if previously waived
-Dickerson-reaffirmed Miranda const holding, applies to states, the congressional statute that
tried to overturn Miranda was unconst b/c Miranda was unconst and congress can’t overturn a
const decision by ct (Marbury); const b/c states always followed it and stare decisis-its
embedded in our culture; the opinions that eroded it though are all still good law too.
The Miranda Erosion Cases- how the Court makes sure to limit Miranda
The undercutting and redefining of Miranda
o Miranda v. Tucker-defense wanted to exclude witness testimony whose ID police
learned about in violation of Miranda; talked about profilactic rights; Miranda might be
other than const
Duckworth v. Eagan
o ∆ was suspected of murder and the police took him to the station for questioning.
While there, they read him a waiver, the key language was “you can have an atty, if
you can’t afford one, you will be appointed one if and when you go to court.”
Technically, counsel won’t come to police station, the police just have to stop
questioning when you ask for counsel under Miranda
o Holding: the warning was close enough- it touched all the bases of Miranda. Miranda
doesn’t mean you actually get lawyer in the police station- only that you have the
right to one if the police decide to question you.
Officer INTENT imp:
Was he deliberately trying to trick the D to get a confession?
To violate Miranda, warnings must be so misleading, creating such a
Interrogation
Generally: Miranda doesn’t protect against administrative questions. It covers questions
about the crime.
o Rhode Island v. Innis
Patrolmen arrested ∆, suspected of robbing and shooting a taxicab driver;
mirandized and asked to speak to a lawyer; while he was in the back of the
patrol car, the officers discussed the danger a missing gun could pose to
handicap children in the area; D obviously felt bad and started talking—told
them where the gun was and the gun was admitted as evidence convicted of
murder.
So wasn’t a question and wasn’t directed at D
D agmt: he was clearly in custody; and the remark about the kids was an
interrogation, and it was improper after he invoked his miranda rights
Ct said it was not interrogation
Holding: Court finds this is not interrogation b/c there was no express
questioning. Not reasonably likely to evoke a response from the suspect.
Definition of interrogation (still now):
Interrogation=words or actions on part of police, that they should
have known, to be reasonably likely to elicit an incriminating
response
o express questioning or its functional equivalent.
o Its both an Objective &Subjective Test
Whether a R police officer would know (objective) his or her words would
likely evoke a response from the suspect (subjective)- but he would only
know this if he knew of the particular sensitivities of the suspect (objective
again)
What factors go to police should have known?
o Evidence in record that police knew he had a handicapped
child (not here)
o Or if he was unusually upset at time of arrest, this would push
him over the edge (not here)
Review:
Duckworth v. Eagan-misleading 4 warnings about atty to D; but warning touched all bases of
Miranda; was not deliberately misleading and the police statemetn was the truth; the
misunderstanding was not profound; close enough, as long as do not profoundly mislead the D,
OK
CO springworth-police questioned D about one case and then about another case; once D
waives, its OK, don’t have to go down same investigation path
Miranda arises during custody and interrogation-both terms of art; need both apply Miranda
Orosko-where questioning occurs is not determinative to be custodial
Mathiason and Bieler-not custodial even though questioning in police station
Location of questioning important for custody, but not determinative
Mccarty-traffic stop not full blown seizure, or custody, so don’t need miranda rights, but could
escalate and then miranda needed
Murphy-D required to answer certain questions by law in probation mtgs; D not in custodial
situation; he had 5th Am right against compulsory incrimination but the D needed to invoke the
right himself, self executing, no requirement for police to inform him of the rights
2 hr questioning of boy-did not determine custodial issue but worth reading b/c custodial
examination and for fact that ct stressed hard that custody is subjective, and ct reluctant to use
objective standards for custody
After custody, looked at interrogation
RO v. innes-interrogation can occur through something other than direct questioning; like
statement from one officer to another; as long as “:functional equivalent” of interrogation-any
words or actions on part of police hey should know are likely to elicit statement from D; in case,
WAIVER:
o After D in custody and interrogated, D must make knowing, voluntary and intelligent
WAIVER of the rights
Taping and Recording ∆s Statements- should tape recordings of the warnings and police
questionings be required?
o Really good idea to do it. Helps both sides if done properly; Make sure to do it the
right way and give the rights. But difficult to tape re-cord all the confessions, so some
states don’t want to risk that confessions would be out if not videotaped.
o But anytime it can be, it should be, protects both sides
North Carolina v. Butler
o Issue that D waived Miranda rights but wouldn’t sign paper acknowledging it
o Does waiver need to be express or implied? Does not have to be express, can be
implied, as long as more than silence
Connecticut v. Barrett- qualified or conditional waiver
o While in custody, a ∆ was thrice Mirandized. Respondent said he would talk about it,
but refused to sign a written confession;
He may have thought there was a different effect written statement has versus
spoken… fundamental misunderstanding of his writes therefore an unknowing
waiver?
o Miranda rights give a right to choose between speech and silence- he chose to
speak.
o Limited Waivers are OK- but here the expressed right to counsel before making a
written statement did not serve as an invocation of the right for all purposes.
o But you do have to understand that your oral testimony can be used against you
o Can waive a written statement and still have your voluntary oral statement admitted.
o D controlled situation here, he wanted to speak, not write, the police honored his
request; makes sense, but if Miranda waiver needs to be knowing, what could it
mean that he could speak it but not sign it, might mean that he does not understand
that oral statement could be used against him but not written statement; in any event,
the ct does not buy it; D can make qualified or limited waiver, he waived, and so its
waiver
10-Nov-08
Review:
-looked at jail plants-never a miranda problem-b/c can’t be coersed w/o knowing you are
coersed (can be manip or deceived though); b/c he did not know it was a police, the warnings
did not need to be triggered; these facts could be a problem though if the D was
Fare v. Michael C-juvenile asked for probation officer; D argued requesting probation officer was
same as asking for atty;
ct said no, not the same; you have to ask for atty, they can keep questioning you if you ask for
friend, parent, another ct officer; asking for anybody atty does not invoke miranda
Right to counsel, not to see probation officer. Probation officer does not meet attorney right.
This is a 13 year old, age may be an issue still.
Fair v. Michael C.-ct made clear that role of atty unique; when juvenile asks for anyone but atty,
not same as invoking miranda right of counsel
Second generation of Miranda-
-right to silence v. right to atty
Mosely-if police wait long enough after silence invoked; and then re-mirandize, then
interrogation OK
Evans-if D asks for counsel, D cannot be reinterrogated unless he initiates
Roberson-if asks for counsel, can’t question him again, even if about diff crime
Minich-even where D has counsel, or has consulted with counsel, if police come to him, its still
not valid b/c he did not initiate
David v. US-right to counsel must be clear, if ambiguous, police don’t need to clear it up, they
can plow ahead and question him w/o clearing up the ambiguity about if he wants counsel or not
OR v. bradshaw-what constitutes initiation in D invoking counsel; broad standard-“what is going
to happen to me now?”; ct said that evinces generalized desire to talk about SM of investigation
MI v. jackson-ct applied 5th Am edwards rule to 6th Am situation
Mentejo-ct overrules MI v. jackson; 6th Am diff from 5th Am; edwards prevents police badgering
when D asks for counsel; in 6th they can come back to him after he asks for counsel
Berghuis v Thompkins
The mere act of remaining silent was, on its own, insufficient to imply the suspect has invoked his or her rights.
Furthermore, a voluntary reply even after lengthy silence could be construed as implying a waiver.
Pasted from <http://en.wikipedia.org/wiki/Berghuis_v._Thompkins>
Miranda makes clear that silence is not a waiver and burden on prosecution to show waiver is a
heavy one. But since Miranda, this is a lot less of a burden. Court never before considered
silence a waiver, and court here seems to be holding that silence followed by a statement is a
waiver. This is a departure from Miranda.
You basically have to speak to stay silent now. They can alternatively talk to him and if he makes
statement, it's admissible.
Most people assert their Miranda rights in a 6th Amendment way by demanding a lawyer &
once the ∆ demands a lawyer, the police have no right to come back and question-
but the police do not have to get the lawyer for the ∆ (so long as no questions).
o The ∆ may talk to the police if they then request a withdrawal of counsel OR initiate
(directly or indirectly) a conversation with the police then that again takes it back
to square 1 (re-Mirandize).
Diff btwn D asserting “right to remain silent” and “asking for atty”:
After request for silence, police can come back and ask again if:
o Minimal requirements for the resumption of questioning once a suspect asserts his
MD v Shatzer
Michael Shatzer, the respondent in the case, was an inmate in the Maryland penal system, serving time for
child sexual abuse. Police wanted to question Shatzer about allegations that he had sexually abused his son.
Shatzer declined to speak without his attorney present, at which point the interview ended (per Edwards). The
police closed the investigation and Shatzer returned to the prison population. Three years later the police
opened a new investigation and again asked to question Shatzer. This time Shatzer waived his right to have an
attorney present; only after making incriminating statements did Shatzer ask for an attorney. With this
evidence in hand, Shatzer was convicted of sexual child abuse . The court denied Shatzer's motion to suppress
his confession, reasoning that the three years between the two interviews counted as a break in custody.[2]
On appeal, the Court of Appeals of Maryland reversed, holding that even if there were a break in custody
Court held that police may re‐open questioning of a suspect who has asked for counsel (thereby underEdwards
v. Arizona ending questioning) if there has been a 14‐day or more break in Miranda custody. (Edwards basically
expires after 14 days… he wants counsel and remains in custody for 14 days, on the 15th day, the police can
come back and question the D if he is given rights and he waives those rights). The ruling distinguished
Edwards, which had not specified a limit.
Pasted from <http://en.wikipedia.org/wiki/Maryland_v._Shatzer>
If you ask for counsel, you're not asking it for all time in this case, you get it for 14 days.
Assuming he was in custody, it's still okay to come back in 14 days. If he's not in custody,
Edwards doesn't apply because Miranda doesn't apply… they could come back right
away. Remember custody means freedom is restrained in a significant way, but court
says re: being released to general population, he had a chance to reacclimate to his
normal prison life. So if he's in a holding cell that's custodial interogation. Sure, he's not
free to leave, but this is a different environment.
When he's in custody, then free, then in custoday again (during interrogation), anything
more than 14 days of custody allows for requestioning.
Oregon v. Bradshaw
o Court's definition of "initiation"
o ∆ was suspected of causing the death of a minor through his drunk driving. He asked
for a lawyer and the police immediately terminated the conversation. D asked what
would happen next? Police gave him a polygraph and said this shows you are lying,
why don’t you talk to me and clear it up
o Interrogation=questions put to D or functional equivalent of questioning which are
from RI v. Innis (things reas likely to …, subjective/objective)
o Issue: whether D initiated question when he asked what is going to happen to me
now?
o Court: D expressed desire to continue with discussion.
o What does “initiation” mean under Edwards?
“Initiation”=desire on part of accused to open up more generalized
discussion related directly or indirectly to investigation
So , “what is going to happen to me now?”-ct says this is “initiation” –he
was in essence opening discussion about his criminal activity—prof says
this is BS, it was just a normal reaction asking where he was going
next/what was next step in process (this was more reasonable
interpretation)
o Some inquiries, like a request for water/coffee, are so routine they can not be said to
express a desire on the part of the ∆ to open up a conversation related to the
investigation. Such inquiries or statements by either the ∆ or the police officer will not
generally “initiate” conversation.
o But note that “initiation” is interpreted very broadly (anything other than I’d like
coffee)
Blake v. State
o 17 year old taken to the station in his boxers, thrown in a cell, he is Mirandized and
demands a lawyer so they stop talking. Later the ∆ is given his charging document
but ineligible for the death penalty unless 18 (so the charging document was
McNeil v. Wisconsin
○ Facts:
After arrest for armed robbery, McNeil was represented by a public defender at
a bail hearing.
After McNeil went back to jail, a sheriff visited him, McNeil waived his Miranda
rights and sheriff asked him questions about a factually unrelated murder &
attempted murder.
o Issue: can police come back and question D again if he is not initiating or rep by
counsel right there;
o edwards in a 5th amendment situation says no if D is in custody;
5th amendment situation always involves some sort of coersion or compulsory
self incrimination… where this isn't present in 6th amendment situation.
So it's different when you ask for counsel in a 6th amendment situation *(5th
you're saying im helpless without an attorney)
o jackson extended that to non-miranda by analogy within 6th Am country;
o in 6th Am, the concern is stopping the badgering; in 6th Am this is not as important as
in 5th Am- b/c the custodial interrogation badgering involves compulsion (miranda
basis);
o when D says wants counsel in custodial interrogation saying I am helpless to
represent myself; anytime police come back is badgering in custodial interrogation;
that inherent compulsion is not present in 6th Am when the D is indicted/arraigned
(not in custody when being questioned)-not as worried about badgering in that
situation; badgering is foundation of edwards, so no basis for edwards approach in
6th Am, noncustodial situation; and if D in custody, then he is protected by
miranda,roberson, minnich, and edwards
o
Moran v. Burbine
o Facts:
While a ∆ who had been arrested and Mirandized was in custody and had
made waivers and confessed to murder. He never requested an attorney
during his interrogation (which was prior to arraignment).
his sister had gotten him a lawyer. The police had said to attorney they would
not interview that night. They decided to though. The ∆ never asked for and
never knew his sister got him a lawyer.
Police took him to interrogation room and conducted the first of a series of
Estelle v. Smith
o Facts:
∆ was indicted for murder in Texas. The state announced it would seek death
penalty.
The judge ordered a psychiatric evaluation over wishes of D attorney. The
doctor determined his capacity to stand trial; at sentencing Dr testified as to the
respondent’s future dangerousness based on statements D made to the Dr.
Review:
-sister atty case; it’s not a miranda prob b/c D knowingly, voluntarily, intelligently waived his
rights; did not matter that he did not know about the atty; diff from escobido b/c in escobido
asked to see his atty and police did not let him
-was custodial w/o police blue; in competency exam which is where coersion happened;
comptency interview was used during sentencing; violated his 6th right b/c no right to counsel
and violated miranda b/c it was like custody b/c it was court compelled
-chavez-1983 suit; ct said even though the D had statement taken in violation of miranda, it did
not matter b/c the evidence was never used against him in a trial; taking of statement in violation
of miranda is not 5th violation; what violates the 5th is using that statement in court, not the taking
of the statement
Chavez v. Martinez
o 1983 civil suit
o D was shot and police accompanied him to hosp; no miranda
o SCOTUS said that D’s const rights were not violated
o D was never charged with crime;
But claimed that police violated his 5th Am right against compulsory incrim
and 14th Am DP right to be free from coersive questioning
o 5th Am begins when you are in custody and being interrogated
o Even though he was not charged, he still argues that his Miranda was violated; Ct
says that b/c statements were never used against him in ct, the 5th does not apply,
b/c 5th compels you against witness against himself, if statements never used against
you in ct, then no miranda violation!
o DP: Did not shock conscience b/c he was being treated by medical ppl during the
interrogation, so it did not make him sicker
o Like immunity, you can compel someone to tell you what they did if you promise not
to use it against them in a crim proceeding
Fruit of Poisonous tree: when const violation, the evidence derived from const violation is
unconst (exclu rule); if secondary evidence derived from that const violation, it’s also
inadmissable b/c its fruit of poisonous tree
Hypo: if police beat statement out of D, that is classic 5th Am coersion, if the gun they find as
Is Physical Evidence or a “Second Confession” derived from a Failure to Comply with the
Miranda Rules Admissible?
o Oregon v. Elstad- An un-Mirandized voluntary statement does not preclude a later
Miranda waived voluntary statement.
Facts: made first statement w/ no miranda; then mirandized; waived; and
made a second voluntary statement
Issue: first statement not admiss b/c taken in violation of miranda
But is second statement admissable?
Ct says yes; b/c Miranda is not “real” const protection, it’s prophylactic
No fruit of poisonous tree consequences
Note: this is different from “classic coersion” 5th Am violation, beating
statement out of D, which will result in suppression under fruits of
poisonous tree
o United States v. Patane
Gun, like a statement in Miranda is not fruit of poinsonus tree (remember
Miranda statement is not like classic coercion, which is a constitutional
violation and poisonous tree applies)
The ∆ was arrested outside his home; began giving the ∆ Miranda
warnings but was interrupted, said he knew the rights- the defendant told
him where the gun was.
Issue: can physical evidence recovered by admitted even though he did
not receive miranda rights?
RULE: The privilege against compelled self-incrimination protects against
involuntary statements and evidence derived therefrom, but does not
suppress physical evidence that is the fruit of an unMirandized, but
voluntary statement.
The self-incrimination clause cannot be violated by the intro of non-
testimonial evidence (nontestimonial b/c physical evidence) obtained as a
result of voluntary statements.
Ct: b/c mere miranda violation, and miranda designed to protect
statements not being used, here, the statement will not be used, but the
GUN will be used, which is nontestimonial physical evidence; miranda
designed to make you not be a witness against youself (but to prof this
does not make sense b/c the classic coersion leads to nontestimonial too)
Concurrence: “Miranda must be accommodated to other objectives of
crim justice sys” (need to balance miranda with catching the bad guys)
Gun=derivative evidence
Dissent: encourages police to violate miranda b/c even if they can’t use
the statement, they can use the derivitave evidence
o Police began the “miranda two-step”: police would ask D for statement; he would say
yes I was there; then they would mirandize him; he would waive; ask him the same
thing; the second statement would be admissable b/c miranda not subject to fruits
o Missouri v. Siebert
Miranda “two step” case
∆ was not Mirandized and question for 30-40 minutes. Then she was
given a break, Mirandized, and asked to confirm the information she
provided the first time.
Holding: A mid-stream recitation of warnings after interrogation and
unwarned confession can not effectively comply with Miranda, and so the
2nd , repeated statement after a warning is inadmissible.
The other cases are still good law, so how does this application get w/in
fruits?; how it gets around elstad w/o overturning:
FALSE CONFESSIONS:
Central Park Jogger case:
Woman was jogging in CP, she was assaulted and raped by one or more people. Police picked
up some gang kids and mirandized them. A bunch of the kids confessed after police were not
following good procedure. 13 years later, they caught a guy who actually committed the rape.
Review:
Elstat-when statement taken in violation of Miranda, and leads to second statement, fruits does
not apply to the second statement; second statement admissable
Applied to tangible secondary evidence in Patane; D mentioned gun in mirandaless statement;
proceedings.
When do Violations of Miranda, Privilege Against Self-Incrimination, and 14th Amendment
Occur?
o Chavez v. Martinez
During an altercation with a police officer, Martinez was shot 5 times and
paralyzed from the waist down. Chavez questioned him while receiving
treatment in the hospital, pausing occasionally for emergency treatment.
Martinez was never Mirandized.
Generally:
-when statement suppressed it’s not b/c its untrue, its b/c there was a procedural flaw; guilty may go free
-but suggestiveness in IDs that leads to mis-IDs, innocent may be convicted
so first look to see if there's suggestiveness… then look at reliability factors
How good a look witness got, certaintly, time between crime and ID, etc…
Kind of ID proceedings:
-lineup-4-5 ppl standing in eyesight of witness; corporeal, face to face ID
-showup-one on one, D presented to witness and asked if he robbed you
-photo show up-shown one photo, and witness asked is this him
-photo arrray-witness shown series of photos and needs to pick D
24-Nov-08
Review:
Next class 1:15 thurs start
Last class: ID’s—trilogy of wade-gilbert-stovall; ct enumerated protections for D’s for ID procedures
Wade-when D in 6th Am country, D has right to atty at line-up or show up (corporeal proceding); he can
waive the right; if he does not waive, that evidence inadmissable; in court ID can be admissable if witness
had independent basis for ID, not from recollection of tainted lineup, but form getting good look at D at
time of crime
Kirby-ct limited protection to right only arising after ind/arr
Ash-right n/a to photo arrays even after indictment (6th Am country)
Stovall-made clear that DP applies in ID procedures where ID is so suggestive, b/c of exigency,
suggestive ID ok if necessary, but police should avoid suggestive procedures and can lead to DP violation
#1-is there suggestiveness, if NO, no DP violation; if yes, then ct will look at reliability factors; both out
of ct and in court can be admissable if reliability outweighs suggestion
“Standing” to Object to the Admission of Evidence
• If you are not the party aggrieved you have no basis to challenge.
o Alderman v. United States
The suppression of the product of 4th Amendment violation can only be urged by those
whose rights were violated by the search itself, not those who are simply aggrieved by
the introduction of the damaging evidence.
What it means: only the D whose 4th Am rights were violated can assert exclusionary
rule; if the evidence was obtained in violation of someone’s 4th Am rights, it does not
matter unless it was YOUR 4th Am rights
o You can only raise 4th Am/excl rule challenge if you were personally
victim of unreasonable police activity
Dissent: says that exclusionary rule is supposed to deter police, as GENERAL
prohibition and this rule only applies to ONE person
o Alderman rule limits the number of ppl who can bring up the police
misconduct and get excl rule applied
o Padilla mentioned on FN of 173
If one is charged as a co-conspirator, no expectation of privacy therefore no privacy.
o Payner
IRS suspicious of Americans banking in Bahamas and one particular bank; when bank
official came to US for visit, IRS agents stole his suitcase and photographed hundreds of docs
from it; used to convict Payner one of the bank customers for fedl income tax violations;
Payner challenged the illegallity of the search and sought to exclude it, but his 4th rights were
not violated, the bank ee’s rights were… payner had no expectation of privacy in banker's
briefcase.
Procedural:
lower ct excluded the evidence under supervisory powers not 4th Am b/c of blatant
illegality of IRS actions (only other time was mcnabb-mallory)
SCOTUS let the evidence in, was not going to make an exception to the standing
requirement of 4th excl rule (does not want cts to “indiscriminately” apply the rule);
bright line rule
o Jones
Jones was occupying house of a friend; po searched house and used drug evidence against
Jones; ct said he can challenge the search b/c he was legit on the premises and he also had
automatic standing b/c nature of crime;
b/c D convicted of narcotics possession; nature of narcotics makes it so you don’t want
o Exceptions
Independent source
Attenuation: although illegality occurred, its impact has weakened over time.
Doctrine of inevitable discovery
Review:
Attenuation (continued)
o Brown v. Illinois- confession as the “fruit”
D arrested on less than PC, so it was illegal full blown seizure (4th Am violation)
After his Miranda warnings, he waived and made incriminating statement (so 5th Am
complied with)
Miranda warnings were not good enough because miranda protects under 5th
amendment… and here illegal arrest under 4th amendment.
Ct says no attenuation (to exclude evidence)
Not admissible here
Factors:
How much time between arrest and confession (2 hours here)? How flagrant did po
act? Were miranda warnings given?
o The longer pd of time btwn seizure and statement, the more attenuation
o If intentional bad faith conduct by po, the less likely attenuation occurred
o New York v. Harris
Where the police have probable cause to arrest a suspect, the exclusionary rule does not
bar the use of a statement made by the suspect outside his home even though the
statement is obtained after an in home arrest in violation of Payton
po need warrant/exception to arrest you in home, and they did not; the statement that
flowed therefrom in the home was OUT; but the statement made outside home was
admissable).
Because PC existed, the statement OUTSIDE the house was admissible.
BUT if no PC, probably the statement outside the house would be out too.
When police pull you out of house, if have PC but no warrant, the statement out of
Final Review
-essay will be on last half; MCQ’s worth 3 pts each tot of 10 will be on whole yr, 1 40 pt essay
Timing: 30 min on MCQ; use 1 hr 15 mins on essay
Essay content: Statements, ID, standing, fruits
How do we challenge statement? (4 ways)
-classic coersion (beat it out or intense psych techniques); violates 5th and DP
-Miranda 5th
-6th Am
-4th Am-illegal seizure led to statement
Does the right apply?
-if right does not apply, then does not matter if they don’t conform to req.
-if it applies, did they conform? How do they conform? If not, what is remedy?
-classic coersion-does it apply? If use physical force or psych elements; remedy is statement is
suppressed.
-miranda 5th-does it apply? Applies when custody and interrogation? Custody is when reas person would
feel freedom restrained in sig way. Determines same as full blown seizure. If custody, also needs to be
interrogation. Need to always both talk about custoy + interrogation. Interrogation is express questioning
about crime or functional equivalent thereof which are words or actions by police that would be reas
likely to elicit statement from D (Innis). If custody and interrogation, then miranda applies. How do po
conform to miranda? Must give 4 miranda warnings. Were the warnings given adequately, touch all
bases? Must give all 4; if po deliberately misleads, they might be inadequate
-6th Am-does it apply? Was D indicted/ arraigned. massiah-if applies, po forbidden from deliberately
eliciting a statement? If applies, po conform if give miranda and D waives. Deliberately elicit=Words or
actions that are liely to create a situation that will induce D to make a statement; jail plant who engages
conversation violates 6th but not miranda; if break in time btwn jail plant convo and admission, it’s OK;
6th Am is offense specific; only applies to crime D indicted/arraigned for (depends on lesser included
defense)
-miranda applies only when in custody; 6th applies whether or not in custody
-if D asks for atty, in miranda, po can’t ask him about anything unless he initiates
-not a miranda violation if the sister gets him a atty, and po don’t let him know that, but this would violate
6th Am if in 6th Am country b/c po can’t interfere with him and atty in 6th Am country
-if arrest in house, and take statemnt out of house w/ PC, the statement admissable
-attenuation-time elapsed? Flagrant police? Miranda given?
-waiver? Mere silence not waiver, but not much more required.
-asking for anyone other than atty does not invoke atty
-waiver is subjective whereas custody is objective.
-if D makes qualified waiver, will speak but not write, that is OK.
-when D invokes his rights
-if wants to remain silent, under mosely, po can come back and question him as log as scrupulously honor
right to silence; wait reas time, give miranda again, waived.
-if D asks for counsel; po cannot wqustion him unless he initiates the questioning; if he talks about
general discussion about SM of investigation, that is OK; not offense specific, so they can’t talk to him
about ANY case at all, even if not the same case
-asking for atty needs to be crystal clear
-miranda exception-public safety exception-if po need for safety reasons to get at evidence, its amissable
-4/5-classic/6 all have fruits
-miranda and fruits?-none (elstad); unless statement leads to second statement that is product of first.
-IDs-2 ways to challenge; 6th – applies only in 6th Am country; how complied with? If D in corporeal ID
(lineup, showup), he msut have counsel or affirmatively waive counsel; if not, using it at trial violates his
6th rights, but pros can still get in court ID if it has an independent basis from the bad ID (n/a to photo
arrays)
-DP-D must say suggestiveness of ID outweighs reliability; was there suggestiveness? If none, no DP
25-Nov-08
Exam Review
If there is a joint access, the ∆s share the risk that everyone can be brought in. However, if both ∆s are
there (they can only waive their own rights)- if
o See Randolph v. Georgia
There are 4 ways to get in a house: consent, exigency, search warrant, and an arrest warrant. An arrest
warrant under Peyton includes a search warrant for the arrestee’s home provided there is reasonable cause
there is reason to believe the arrestee is present at the time
o Even when the warrant clause is the one controlling the entry, there is always a reasonableness
limitation upon the execution of an otherwise limitless warrant.
Don’t need to knock and announce unless there is reason to believe a person will leave or
drugs be destroyed. Assuming the only way to get into the home is an arrest warrant and there
reasonable cause exists, reasonableness limitation dictates I can only go to places where it
would be reasonable to find the suspect.
Regarding an individual who cuts short his Miranda warnings and says he already knows them- then it
becomes a factual question as to whether there was a knowing and intelligent waiver under totality of the
circumstances.
o Where there is an incident whether the cops know the individual knows his Miranda rights, like
Warnken, cannot assume he knows Miranda. Should still give him his rights.
Harmless error where you’re, for example, Mirandizing a wealthy person and you forget to
says that if he can’t afford one, they will appoint one for him.
Harmless Error and the 4th Amendment
o If the court made an error (i.e. someone filed a suppression motion to keep something out, like line-
ups under the 6th, and lost, then that evidence was permitted in), if you can demonstrate the judge
was incorrect and the evidence was inadmissible, then you win. New trial UNLESS it can be
demonstrated beyond a reasonable doubt that even though the evidence was not admissible, that
error did not contribute to the verdict, then the judgment is not reversible.
HYPO: Warnken is in line with classmates to go to the casket of Kennedy. While in line, on
TV Oswald was shot. Suppose a confession was beat out of the killer of Oswald and the
testimony of the witnesses. The confession of the killer, even though unconstitutional, beyond
a reasonable doubt, there would be substantially the same verdict.
Arizona v. Fulminate- Court extends the harmless error doctrine to prophylactic rules (to keep
out evidence to deter police misconduct) to facts that go to the integrity of the fact-finding
process.
Remedy for violation of the 6th Amendment- like an improper ID or a statement comes in, then in terms
of this course, the remedy is a new trial. Don’t forget there is also a right to be free of counsel under the
6th Amendment.
Process for Voluntariness Analysis
o If there is litigation over the admissibility of a statement, any statements are always analyzed under
voluntariness totality of the circumstances, which burdens the government to prove the
admissibility of the statement. But if the facts force you to look at arrest as well, then also have to
analyzed Miranda as well as voluntariness which applies all the time. If there is ANY information
telling that a suspect has been formally charged (i.e. arraignment), then the 6th has to be analyzed
(has the right to counsel been violated?).