combined cppt outline

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Criminal Procedure Pre-TrialProf. Cain

Spring 2011

CHRIS CH. 1-4ish

Chapter 1: Study of Criminal ProcedureI. Bill of Rights as ratified limited only the actions of the Federal Government

a. 14th Amendment was ratified in 1868, provided that no state shall deprive citizens

of life, liberty, or property without due process of law.

i. Thus incorporating the Bill of Rights into the 14th amendment, thus also

applying to actions by the states.

1. Whether it was fundamental in the context of the criminal processes

maintained by the American states.(Warren-Court)

a. Fourth Amendment:

i. Mapp v Ohio(1961): Exclusionary Rule

ii. Ker v California (1963): Full Scope of 4th Am.

b. Fifth Amendment:

i. Malloy v Hogan(1964): Privilege against Self-Incrimination.

ii. Benton v Maryland(1969): Ban against Double-Jeopardy

c. Sixth Amendment:

i. Klopfer v NC(1967): Right to Speedy Trial

ii. Duncan v Louisiana(1968): Right to Jury Trial

iii. Gideon v Wainwright(1963): Right to Appointed Counsel

iv. Pointer v Texas(1965): Right to Confront/Cross-Examine

v. Washington v Texas(1967): Right to Compulsory process

for obtaining witness.

d. Eighth Amendment:

1. Robinson v California(1962): Ban against cruel and

unusual punishment

b. POST-WARREN COURT: FOUR THEMES

i. Ultimate Mission of the Criminal Justice System is to convict the guilty and let

the innocent go free.

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1. Exclusionary Rule: Its application has received less than enthusiastic

support from post-warren court

2. Miranda Rule: Confessions which are coerced are excluded.

a. Confession obtained in violation of Miranda may be used if show

that confession was uncoerced

b. Admissible in the prosecutions case in chief if questioning was

necessitated by an objective threat to the safety of the public or

to protect the rights of the criminal defendants.

ii. Court believes State Judges can be entrusted to enforce federal constitutional

rights.

iii. Michigan v Long: A State Court relying on state constitutional provisions may

nonetheless be subject to federal review unless the decision clearly indicates

that it is based solely on state law.

1. CENTRAL PROBLEM of CRIMINAL PROCEDURE

a. How best to protect the rights and interest of the criminally

accused without at the same time unduly inhibiting law

enforcemnent.

II. STAGES OF CRIMINAL PROCESS

a. COMPLAINT

i. Private Citizen

1. Investigate Complaint, question witness, examine physical evidence.

a. Have enough for Probable Cause

i. Go to Magistrate for an arrest warrant for sulprit

ii. Possibly a Search Warrant authorizing search of house.

ii. Police Directly Observe what looks like Criminal Activity

1. Most often no time to secure a warrant.

a. Probable Cause

i. Police have probable cause to believe an individual has

committed or is committing a crime, they may arrest him

w/o a warrant.

b. No Probable Cause

i. Police may still question him, if probable cause develops,

may arrest him.

b. ARREST

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i. SEARCH

1. During arrest the police may conduct a search of individual

2. May question him concerning the alleged offense

ii. Taken to Stationhouse

iii. Formal Interrogation

c. INITIAL APPEARANCE (Judicial Officer)

i. Informed of the Charge

ii. Of his right to counse/remain silent

1. Felony Cases

a. IF NO ARREST WARRANT

i. Magistrate must determine whether there is probable

cause to detain individual

b. ARREST WARRANT

i. Must Determine whether to be released, subject to bail, or

detained.

d. PRELIMINARY HEARING

i. Prosecutor must formalize charges against Defendant.

1. Some States merely file an information describing charges.

2. Go to Grand Jury and obtain indictment stating charges.

3. Usually make out a prima facie case on the charges in the information

during a preliminary hearing in front of the magistrate.

III. CONSTITUTION ALLOWS

a. Constitution allows the Defendant to demand counsel only at certain stages of pretria

process: (Counsel usually appointed at Initial Appearance)

i. Interrogation

ii. Lineup Identification

IV. Counsel can Make Several Pretrial Motions

a. Dismissal

b. Change of Venue

c. Suppression of Illegally Obtained Evidence

d. Discovery of Evidence

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e. Implementation of a Statutory speedy trial

V. PLEAS

a. Not Guilty

b. Guilty

c. Nolo Contendre

i. (Guilty/Nolo Contendre) Plea must be voluntarily and intelligently entered.

ii. Not Guilty

1. The Case is Set for Trial.

a. Most Cases Entitle to a Trial by Jury: 12 ppl in Federal Court

2. VOIR DIRE (Choose Jury)

3. Notice of Alibi or Insanity Defense must be made prior to Case.

VI. TRIAL

a. Prosecution

i. Bears the Burden of Proving each element of the crime beyond a rsbl doubt

b. A verdict is reached and sentence imposed

c. Jury Trial: Separate Hearing for Sentencing normally.

VII.APPEAL

a. Bail Question may Arise

b. Some State have automatic appeal, others State Courts discretionary.

i. After Sentencing and Appeal

1. Defendant may collaterally attack the verdict through a writ of habeas

corpus

PART A. THE 4TH AMENDMENT: SEARCH AND SEIZURE LAW

The Fourth Amendment guarantees the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizuresno warrants shall issue,

but upon probable cause, supported by oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.

1. Citizenry protection against intrusion into their privacy. (unreasonable search/seizure)

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2. Warrants must meet certain requirements before they are regarded as valid.

CHAPTER 2: EXCLUSIONARY RULE AND OTHER REMEDIES

INTRODUCTION

Exclusionary Rule- a prohibition against use of evidence obtained through methods which

violate the Constitution.

Exclusionary Rule: method of deterring the police from engaging inUNCONSITUTIONAL searches and seizures.

o First used in Boyd v United States

GENESIS OF THE RULE

Exclusionary rule was first applied to the states under the Fourteenth Amendments Due

Process clause in Wolf v. Colorado (1949).

Mapp v Ohio (1961): Made the exclusionary rule binding on the states.

o REASONING: both deterrence of police misconduct and maintaining judicial

clean hands.

States still had the general power to determine what constituted a reasonable

search/seizure.

Ker v California (1963): State courts must apply federal standards to the lawfulness

or reasonableness, unless the state standard is more restrictive than federal

standard.

THE SCOPE OF THE RULE

Evidence obtained in violation of the 4th Am must be excluded at trial in both federal and

state prosecutions

a. Criminal Proceedings Other Than Trial

a. BALANCING TEST: Balancing the deterrent effect against the costs of its

application

i. US v Calandra (1974): Witness could not refuse to answer questions

merely because evidence was obtained unlawful search/seizure.

1. STANDING: A witness cannot challenge a violation of someone

elses privacy rights.

a. Stone v Powell: Exclusionary Rule not use in Habeus Corpus

Proceedings.

b. Pennsylvania v Scott: Exclusionary Rule not use in Parole

Revocation Proceedings

i. REASONING: Parole officers are more supervisory

than adversarial.

b. Non-Criminal Proceedings

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a. DETERRENCE FACTOR: Whether the Civil Proceeding falls outside the offending

officers zone of primary interest.

i. Must have a deterrent effect. (use Calandra balancing-test)

1. Juvenile Delinquency Proceeding: E.R. has been applied

2. Administrative Proceedings: E.R. has been applied.

c. The Reasonable Good Faith Exception

a. Exclusionary Rule should not apply when police are reasonably unaware they

are violating the Fourth Amendment

i. REASONING: Has No Deterrent Effect

1. Examples: Reliance on Warrants, Statutes, Court Records, and

Officers own Perceptions

2. Apply Calandras Balancing-Test

b. (1) RELIANCE on Warrants

i. NO PROBABLE CAUSE; however GF belief Warrant was Valid = Ok

1. State v Leon: Evidence may be used when obtained by police acting

on authority of a warrant subsequently unsupported by probable

cause, provided they had an objective good faith belief the warrant

was valid.

2. State v Leon: Warrant application was based on information

supplied by a confidential informant of unproven liability.

Warrant must be issued by a neutral and detached Magistrate.

ii. DEFECTIVE ON ITS FACE= ok. Massachusetts v Sheppard

1. UNLESS: So lacking in indicia of probable cause as to render belief

in its existence entirely unreasonable.

2. Massachusetts v Sheppard: Warrant, on its face, authorized only a

search for controlled substances. Argued particularity

requirement. (Officer who conducted search had drafted an affidavit

with sufficient facts to establish PC for seized items, judge could

only find controlled substance warrant for) =GF Exception

c. (2) RELIANCE on Statutes

i. BALANCING RULE: Deterrent Effect

1. An officer should not be required to anticipate that a court would

later hold the ordinance unconstitutional.

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d. (3) RELIANCE on Records and Reports

i. BALANCING RULE: Deterrent Effect

1. Good Faith reliance on computer records should not trigger the

exclusionary rule.

2. Arizona v Evans: D was arrested by police at a traffic stop,

computer indicated outstanding warrant, ensuing search of car led

to marijuana. (Arrest warrant had been quashed 17days prior)

a. Good Faith Exception Applied

e. (4) Reliance on the Searching Officers Observations

i. UNCLEAR

f. IMPEACHMENT EVIDENCE

Against the Defendant

i. Evidence obtained through an illegal search and seizure is excludable fromthe prosecutions Case-in-Chief

1. However, evidence obtained through an illegal search may be used

as evidence to impeach the defendant if he takes the stand.

a. DETERRENT EFFECT: Excluding evidence from case-in-chief is

the deterrent effect.

b. Walder v US (1954): Court approved used of illegally seized

heroin two years prior to impeach D statement that he had

never purchased/possess narcotics in the past.

c. US v Havens (1980): Authorized use of illegally seized items

to contradict stmts about the crime charged as well.

i. REASONING: Exclusion only minimally deter police

misconduct, and at same time encourage perjury by D

d. Havens: Illegally seized T-shirt with cutouts to sew pockets

for undershirt for the purpose of carrying cocaine in suitcase.

D denies knowledge of swatches. Gov. allowed to introduce

illegally seized t-shirt to impeach Ds credibility.

Against other Witnesses

ii. State is prohibited from impeaching a witness other than the D with

illegally obtained evidence.

1. REASONING: (1) It is likely to deter outright falsification by other

witnesses. (2)Would stop Ds willingness to put witnesses on stand.

(3)Would give police more incentive to violate 4th Am.

The Fruit of the Poisonous Tree Doctrine

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iii. Expands the scope of the Exclusionary Rule.

1. Doctrine may lead to exclusion of evidence procured through lawful

means. (ex: confession obtained hours after illegal seizure)

a. Rationale: Doctrine of Deterrence

2. Silverthorne Lumber v US: D failed to produce documents the gov.

discovered in illegal search. (Excluded)

iv. In determining when fruit of police illegality is admissible, three

doctrines have been developed by the courts:

(only exclude evidence which would have a significant deterrent effect)

1. The attenuation doctrine

2. Independent source doctrine

3. Discovery Doctrine

Attenuation Doctrine: (Wong Sun v US)

Whether the derivative evidence has been come at by exploitation of

initial illegality or instead by means sufficiently distinguishable to be

purged of the primary taint

1. EX: Confession acquired immediately following an unlawful arrest

where narcotics were found on 2nd defendant solely on defendants

declarations= Excluded

2. Ex: 2nd Defendant goes to station house several days after being

released yet voluntarily makes statements= Not excluded, even

though he was located due to unlawful arrest.

a. Whether the confession is an act of free will

i. Were Miranda Warnings given prior to commission?

ii. Temporal Proximity of the illegal policeconduct/statements.

iii. Presence of Intervening circumstances/events

iv. Purpose and Flagrancy of the official misconduct

Dunaway v New York (1979): Police brought D to stationhouse soon after a

robbery/murder for an interrogation without probable cause to arrest.

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o Miranda Warnings were given

Dunaway confessed to robbery/murder

RULING: Confession must be suppressed. Detention for

custodial interrogation. Confession followed so closely upon the

detention and the polices conduct as to the confession could not

be separated from the initial legality.

o DETERRENT EFFECT: To hold otherwise would allow law

officers to violate the 4th with impunity.

Taylor v Alabama (1982)

o Miranda Rights were Given 3times

o 6hrs had elapsed between arrest/confession

o Defendant was permitted to see friends

RULING: Insufficient intervening events to *attenuate* the taint of

arrest.

Rawlings v Kentucky (1980): Statements were made within 45 minutes of arrest and

were admissible.

o Miranda Rights were given

o Defendant was in his house, congenial atmosphere

Companions were present

o Statements were spontaneous rather than a response to direct questioning

o Polices violations was not intentional; GF Mistake

o Defendant did not argue his admission was involuntary.

MOST IMPORTANT FACTORS: Intervening Events , Flagrancy of Police Misconduct

Most of the cases in which the Attenuation Doctrine has surfaced have involved the

analysis of when a confession obtained as result of a 4th Am violation is admissible.

Attenuation Doctrine may also be used as part of the fruit of an illegal seizure such as

for Identification of a person or another search

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I: Whether an Identification during a properly conducted lineup should be

admissible despite the fact it resulted from an illegal arrest.

Browns Factors: (1)Intervening Events, (2)Voluntariness of the Ds

participation in lineup, (3)Flagrancy of the arrest.

United States v. Ceccolini: Police Officer stopped to talk to his friend Hennessy at

work in the Defendants Shop. Officer peeked into a package w/ money and gambling

slips. Learned the package belonged to Boss from Friend. FBI had been conducting aninvestigation of gambling operations. Officer reports to FBI. 4months later FBI

interviews Hennessey, 1.5 years after the search, Hennessey testimony helped

convict the Boss.

RULING: (1)Length of the Road between the search and testimony.

(2)Witness testified on her own free wil, (3) Absence of evidence that the

objectict of searching package was to obtain a witness against the Boss.

Typical Poisonous Tree: The illegality is an arrest or search not founded on probable

cause.

o (Browns Factors)

Atypical Poisonous Tree: FAIL to get a warrant, not for lack of probable cause.

o New York v Harris: Without a warran, arrest the D in his home several days after

developing PC. Obtain incriminating stmts from D while at his home and after taken

to stationhouse.

RULING: According to Payton v New York, requires an arrest warrant for non-

exigent home arrests. Statements in home should be excluded as fruit of the

Payton violations. Exclusion also of stationhouse statements.

o Hudson v Michigan: (Knock and Announce Violation) Officers searched and found

drugs/weapons.

Police must knock and announce their presence unless they have reasonable

suspicion to believe that evidence will be destroyed or a suspect will escape or

harm others.

Scalia: Deterrence of knock/announce is not worth a lot.

o RSBL suspicion is easily met so police have little incentive.

PROBABLE CAUSE Knock/Announce

1. Reasonable suspicion that evidence will be destroyed

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2. Reasonable suspicion that suspect will escape or harm others.

a. REASONING: When a violation results from want of a 20sec

pause, and a lawful search lasting 5hrs discloses evidence, the

failure to wait at door cannot propery have caused the

discovery of evidence.

The Independent Source DoctrineBoth Silverthorne and Nardone recognized that when the government can establish evidence was

obtained from a source independent of the illegal action, exclusion should not result.

Segura v United States: Evidence found from police illegally entering an apartment

pursuant to a valid search warrant is admissible, so long as the warrant is based on

information wholly unconnected with the intitial entry and its known to the police before

the entry.

Segura: Was arrested in the lobby of his apartment building, the police then secured the

apartment for 19hours pending arrival of a warrant based on information developed

before entry.

o RULE: Evidence discovered pursuant to the execution of a warrant is admissible.

Post-arrest entry is illegal= inadmissible.

Anything the police discovered during the illegal entry would be

inadmissible, including items they could have legally seized pursuant

to a warrant.

Murray v United States: (Precedent over Segura) Evidence discovered during the initial

illegal entry is admissible if it is also discovered during a later search pursuant to awarrant based on information obtained wholly independent of the intitial entry.

Murray: Police suspected the D were storing marijuana and a warehouse, they went in

the warehouse first instead of seeking a warrant. They found marijuanabut no people.

Police successfully received a search warrant based on no mention of discovered

marijuana or prior entry.

o MUST CONVINCE: a trial court that no information gained from the illegal entry

affected the Law Officers decision to seek a warrant or decision to grant it.

Murray encourages warrantless searches of house when the policebelieve they have probable cause.

The Inevitable Discovery Exception If it can be proven that the derivative information would have been discovered by the

police regardless of their unconstitutional acts, the evidence will be admissible.

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Nix v Williams: Body of a young girl allegedly killed by the D- was found as a result of

questioning the Defendant about the bodys location in the absence of counsel and in

violation of an express promise not to do so.

o A volunteer search party was 2.5 miles away from the body and would have

searched the area in the next few hours.

Court allowed statements in(1)Police did not act in Bad Faith and

(2)Evidence in question would have been discovered by lawfulmeans. [Preponderance of the Evidence]

o Requiring GF is not as important: motivation of offending

officer is irrelevant to inevitable discovery analysis.

REASON FOR UNFAVORABLE DISSENT: Police would have no disincentive to engage in

illegality when they believe that they already have a legal source or that one will shortly

develop.

Should the Exclusionary Rule be Abolished? Only a small percentage of cases in which charges are brought are actually dismissed on

Fourth Amendment grounds.

REMEDIES for Unconstitutional Police Conduct

Civil Suits seeking monetary damages and injunctive relief

Criminal Actions

Non-Judicial Remediea

DAMAGES:a. Federal or State Actor? Individual Officer or Governmental Entity?

Federal Officers1. Bivens v 6unknown Agents: Permitted suit against Federal officers

who, without warrant, had searched/ransacked aparatment.

a. Must:

i. acting under color of authority

ii. must have deprived the individual of his constitutional

rights under constitutional provision

ii. DEFENSE: Absolute Immunity v Qualified Immunity

iii. ABSOLUTE IMMUNITY

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Federal Judges / Prosecutors

1. FACTORS:

a. The need to assure that the individual can perform his

functions without harassment or intimidation

b. The presence of safeguards that reduce the need for private

damages actions as a means of controlling unconstitutional

conduct

c. Insulation from political influence

d. Importance of precedent set by the individual

e. The Adversary nature of the process used by the individual in

making decisions

f. The correctability of error on appeal.

iv. QUALIFIED IMMUNITY

Federal Agency Heads / Presidential Aides / POLICE

If there is no clearly established rule at the time the act occurred, then no

liability attaches.

If the alleged actions of the police would have been believed to reasonably

lawful, the suit may be dismissed on a motion of summary judgment.

QUALIFIED IMMUNITYis not just a defense to liability, but prevents

suit altogether.

1. Under the Facts alleged by the P, did a constitutional violation occur?

2. Whether the officers contrary belief in its lawfulness, based on facts

known to him, was reasonable?

3. Whether the officers actions were excessive under the 4th AM?

FEDERAL TORTS CLAIM ACT (FTCA) = Depends on State Law

Prima Facie case against the Government exists if the plaintiff can prove:

1. Damage to or loss of property, or death or bodily injury, which was

2. Caused by a negligent or wrongful act

3. Committed by a federal emplolyee acting within the scope of employment

4. In a state where the act committed would lead to legal liability for a private person.

o IMMUNITY (BARS RECOVERY): False Arrest, False Imprisonment, Abuse of Process,

Assault, Battery, and Malicious Prosecution.

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Sovereign Immunity is not waived on claims arising in a foreign country

o Sosa v Alvarez-Machain: Bars claims against the US that are based on injury suffered

in another nation. (even if some aspects occurred in the US)

o Machain: The planning of the alleged tortuous kidnapping of the plaintiff occurred in

Californiabutthe kidnapping itself took place in Mexico, therefore barred the FTCA

suit.

Bivens action: may not be brought against Federal Agencies.

Correctional Services Corporations v Malesko: Court extended that ruling to suits against

private corporations performing federal functions (ex: prisons).

Bivens actions are meant to deter individual federal officers.

State Officers 1983

1983 provides that any person who under color of state law deprives another of any

rights, privileges, or immunities secured by the constitution and laws shall be liable in an

action at law, suit in equity, or toher proper proceeding for redress.

FACTORS

1. Must be committed by a person acting under color of state law

a. Scope of his employment

2. Must have deprived the complainant of rights, privileges or immunities secured by

the Constitution of the United States.

a. Need not be intentional, may be negligent.

QUALIFIED IMMUNITY under 1983: Police is protected from liability for actions which are

reasonable in light of clearly established legal standards.

o Malley v Briggs: a warrant authorizing an officers actions does not automatically

make them reasonable.

o Briggs: Officer being sued for wrongfully searching the plaintiffs home claimed that

because he be believed in GF that information he provided to magistrate established

PC, he should be immune to suit under 1983.

NOT A DEFENSE IF: a reasonable well-trained officer in petitioners positionwould have known his affidavit failed to establish PC.

Officers should be exposed to liability for unreasonable warrant requests

o SUED INDIVIDUALLY: Most Executive Branch State/Local Officials- Police Chiefs,

Governors, Agency Heads. (STILL HAVE GF DEFENSE)

o IMMUNITY: JUDGES and PROSECUTORS

EXCEPTION: A prosecutor who fabricates evidence is liable under 1983.

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Unconstitutional advice to Police Officers

State Governmental Units 1983 Monell v. Department of SS v New York: Local Governments are immune from suit under

1983.

City of Canton v Harris: Failure to train claim may be the basis for 1983 liability.

o MUST:amount to deliberate indifference to the rights of persons with whom the

police come into contact.

For liability to attachthe identified deficiency in a citys training program

must be closely related to the ultimate injury.

o FAILURE TO TRAIN: Harris ensures that municipalities will not be liable under 1983

for injuries stemming from most non-routine violations of the constitution by their

police, under failure to train theory.

Owen v City of Independence: Held that municipalities doe not enjoy good faith immunityfrom liability. (However, municipalities are not liable for punitive damages)

State Officials acting in their official capacity may not be sued under 1983.

Will v Michigan Dept of State Police: The State is not a person under 1983 and thus

cannot be subject to a suit claim.

Summary:

The Exclusionary Rule cannot financially compensate victims for their injuries.

o Provide no remedy at all for the innocent victim

Damages Action: If successful, has the advantage of make the offending officer pay for

the violation. (Offending officer always has the good faith defense)

INJUNCTIVE RELIEFb. Usually means that Plaintiff must prove that repeated violations have occurred

and that further violations are imminent and cannot otherwise be stopped.

b. Lankford v Gelston: Police had on 300 occasions in 19 days, conducted warrantless

searches of the appellants and other persons home, relying on anonymous tips.

a. RULING: Court granted injunctive relief focusing on:

i. # of illegalities,

ii. flagrancy of misconduct, and

iii. Police officers probable inability to satisfy any damage claim.

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c. Injunctive actions are unlikely to be effective in controlling the police.

CRIMINAL REMEDIESa. At the state level, most jurisdictions provide criminal sanctions for illegal police

conduct including: false arrest and trespass.

i. Subjective good faith is a complete defense to any criminal charge for

trespass or breach of the peace.

b. State and Federal Level: ineffective deterrent to police misconduct

CONCLUSION:

Exclusionary Rule operates to bar evidence unconstitutionally obtained.

o Protect the integrity of the judicial process and deter illegal police conduct.

EXCLUSION of Illegally Seized Evidence is NOT REQUIRED at:

Grand Jury

Habeus Corpus

Sentencing

Parole Revocation Proceeding

Civil Forfeiture Proceeding

Civil Deportation Proceeding

REASONING: Little Deterrent Effect

Exclusionary Ruleo Invalid Search Warrant

STILL VALID if:

Issued by a neutral magistrate and police reasonably believe it to be

valid.

Was obtained pursuant to a law subsequently found unconstitutional.

Obtained in good faith reliance upon computer records mained by

non-police personnel

Used for purpose of impeaching the Defendant on issues raised during

direct examination.

Fruit of the Poisonous Treeo Extend application of the Exclusionary Rule even if evidence is legally obtained.

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Government must show:

Attenuation Doctrine

Independent Source Doctrine

Inevitable Discovery Doctrine.

DAMAGES Bivens Action

o Primary means of seeking damages for the misconduct of Federal Law Enforcement

officials. (Depriving D of constitutional rights, claim under FTCA.)

Individual Federal Officers may assert a good faith defense

1983 (Seeking Monetary Compensation for police misconduct)

o Permits recovery against both individual officer and relevant government unit when

the officer acts under color of state law to deprive the plaintiff of constitutional

right.

Municipalities and Local Government Units may be sued under 1983.

May be found liable only if the act of their employee is authorized by

official policy or custom.

States and State official may not. (immunity)

CHAPTER 3 : The Law of Arrest

INTRODUCTION

Remedy for Illegal Arrest = Simply the release from detention.

o An illegal arrest does not void subsequent prosecution

HOWEVER

o The legality of an arrest is often of crucial importance in determining the admissibility

of evidence.

Exclusionary Rule

Fruit of the Poisonous Tree

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Definition of ArrestI. An arrest must be based on Probable Cause

a. An arrest is some type of restriction of an individuals liberty by the police.

1. Arrest: Trip to the Stationhouse and Prosection for Crime

2. Police Officer restrains ones freedom to walk away

ii. Terry v Ohio: Were there reasonable suspicion to believe the suspect has

committed an offense. (Stop and Frisk)

1. STOP and FRISK: only limited violation of individual privacy.

a. While substantial interest in crime prevention and the police

officers safety.

Detentions in the Stationhouse or Its EquivalentII. Davis v Mississipi: 24 black youths were taken into custody for fingerprinting during a rape

investigation

a. No probable Cause

b. Davis was interrogated twice overnight

i. He was convicted and sentenced to death

COURT HELD: Length of Detention at Stationhouse coupled with the

Interrogation, was too intrusive to be undertaken w/o PC.

III. Dunaway v New York: Stationhouse questioning of a suspect normally requires PC.

IV. Dunway: Police officer took D into custody, investigating robber and felony/murder.

a. Gave him Miranda Warnings

b. Questioned w/o Probable Cause

RULE: Custodial Interrogation requires probable cause

V. Kaupp v Texas: Police took a 17yo kid at 3am to the stationhouse, told him they needed to

talk. (Barefoot/Boxers). PO did not have probable cause or an arrest warrant

RULE: Failure to struggle with a police officer is not a waiver of 4th amendment rights.

VI. Florida v Royer: Non-consensual investigative detention outside the stationhouse can

require probable cause.

VII.Royer: Defendant was suspected of carrying narcotics.

a. Taken to a storage closet (Desk w/ 2chairs) [Private Place]

b. Retrieved Luggage w/o Consent

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c. Royer handed a key to open luggage, consented to prying the second luggage

(marijuana)

i. Storage Closet+15minutes constituted an arrest.

Non-consensual Detention at the BORDER is justifiable on reasonable suspicion.

DETENTION IN THE FIELD (STREET)I. Questioning pursuant to a stop conducted on street require only Reasonable Suspicion.

a. Royer: an investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop.

i. United States v Sharpe: theres not a precise durational limit on stops.

1. Sharpe: whether investigation was conducted in a diligent andreasonable manner.

DETENTIONS AT THE BORDERI. Fourth Amendment requirements are relaxed at the border

a. Governmentals interest in protecting the integrity of the countrys boundaries is

paramount.

1. US v Montoya Hernandez: Had rsbl suspicion defendant ingested

balloons containing drugs to smuggle. Defendant refused an x-rayexamination. So was held for 16hours to wait naturally.

a. Officers attempted to minimize delay by offering an x-ray.

DETENTIONS IN THE HOMEI. Beckwith v United States: Court found questioning by several IRS agents in the Defendants

living room noncustodiual.

II. Rawlings v Kentucky: Policed executing an arrest warrant went in a home for the person

named but failed to find the named person, but discovered evidence of drug possession

as well as number of occupants. Persons were detained for 45minutes while a search

warrant was obtained.

a. RULING: Detention was an arrest, PO did not have PC with respect to detain

individuals did not exist.

III. Michigan v Summers: Individual may be detained during a search of his residence if the

police arrive with a valid search warrant, even though PC to arrest him does not exist.

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a. REASONING: Detention in house is less stigmatizing; Search warrant indicates PC of

criminal activity-thus implying people on those premises may be involved in criminal

activity.

b. RULE (SEARCH WARRANT): A person may be detained if the PO possess a valid search

warrant based on PC to believe there is evidence of crime on the premises.

i. RULE (ARREST WARRANT): May not detain individuals in the home who are not

listed in warrant unless PC to arrest develops as they execute warrant.

c. Muehler v Mena (Search Warrant): Police handcuffed woman, held her for 2-3 hours

with 3other occupants.

i. RULING: Search was for weapons due to gangs, so handcuffing was justified.

Detention was justified because it was reasonable for it lasted no longer than

the search, questioning was permissible due to taking place during the lawful

detention. NO ARREST

KEY FACTORS IN DETERMINING WHETHER ITS AN ARREST:

i. TOTALITY OF THE CIRCUMSTANCES

1. Purpose (questioning v fingerprinting)

2. Manner (Police Detention v Grand Jury Subpoenas)

3. Location (Stationhouse Confrontation v Seizure in Field / Border)

4. Duration

PROBABLE CAUSE: Requirement for an ArrestPROBABLE CAUSE: Between mere suspicion and reasonable doubt

I. Beck v Ohio: Information sufficient to warrant a prudent man in believing that the suspected

had committed an offense.

a. Secondhand Sources (Informants / Victims and other eyewitnesses / Other Police)

INFORMANTS (Whether their information is accurate?)a. Aguilar v Texas: Informant must state-

1. Sufficient underlying circumstances to demonstrate how the informantreached his conclusion

a. Personally Observed the Criminal activity

b. Or heard from other sources

2. Sufficient underlying circumstances establishing the reliability of the

informant

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a. Lying or Distorting the Truth

II. Illinois v Gates: Credibility of informants information = Totality of the Circumstances

III. Draper v United States (as to arrests): an informant provided reliable info in the past to PO

about D selling drugs. That D was in Chicago return on train carrying a Tan Bag that had

drugs. Informant described what he would be wearing and that hed be walking fast

a. PO observed a man fitting description. Arrested him w/o a warrant.

i. Searched and found drugs.

1. Ruling: Informants Tip, coupled with the corroborated info from the

observing officers, sufficed probable cause for arrest.

FACTORS to consider in determining whether an informants information may form

the basis for a probable cause determination:

1. The Informant gives a description of how he found out about the criminal activity;

2. The Informant gives a detailed description of that activity

3. There is evidence that the informant has been reliable in the past.

4. The Informant predicts activity on the part of the suspect which is corroborated by

the police

5. The informant implicates himself in the criminal activity.

VICTIMS and EYEWITNESSESI. RESPECTABLE CITIZEN- Aguilar Spinelli test is relaxed.

a. Chambers v Maroney: usually no motive to fabricate information

b. Maroney: Upheld an arrest for robbery of a gas station for which PC was established

through a report of two teenagers in the vicinity.

i. Blue Compact Station Wagon containing 4 men. (Green Sweater/Trench Coat)

1. Teenagers report was enough for PC

OTHER POLICEI. Police Officer as Informant- Aguilar Spinelli test is further relaxed

a. Whiteley v Warden: an arrest based on a radio bulletin from a sheriff in another

jurisdiction advising that a warrant had been issued for the suspects arrest was held

invalid. Affidavit failed to state any basis for the PC finding.

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i. RULE: Approval of officer making arrests based on reports from other officers

whether or not information in the report was obtained firsthand, provided that

it establishes PC.

b. FIRST HAND KNOWLEDGE

i. Arresting Officer is also the Informant- Did PC exist?

1. Post-Detention Information: Probable Cause must be established by

evidence obtained independently of the arrest

a. Sibron v New York: an incident search may not precede an arrest

and serve as part of its justification.

i. Evidence seized during an encounter which has yet

reached the level of an arrest is allowed.

1. Terry v Ohio: A protective frisk is justifiend and a

weapon is discovered, PC to arrest is est.

b. FLIGHT: To avoid a confrontation with police

i. IMPORTANT FACTOR in determining PC.

c. FAILURE TO IDENTIFY ONESELF

i. Hiibel v Nevada: Failure to identify may be grounds for an

arrest.

ii. Hiibel: PO responding to a report of an assault, had

reasonable suspicion.

1. Requesting a name from an individual is a MINORINTRUSION

2. No 5th Amendment Claim: Giving ones name

presents no rsbl danger of incrimination

d. PROXIMITY OF CRIMINAL SUSPECTS

e. United States v Di Ri: Informant told of Di Ris friends criminal

counterfeiting ration coupons. Investigators tried to justify an

arrest of Di Re from the front passenger seat of a car, both of who

were arrested for engaging in a transaction involving counterfeit

ration coupons.

i. RULING: Court held PO must have evidence that Di Re had

knowledge they were counterfeit ration coupons. Di Res

proximity to criminal activity did not establish probable

cause.

f. Johnson v United Staets: Police informed that persons of unknown

identity were smoking opium in Hotel room. PO entered room and

found opium. Announced all occupants were under arrest.

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i. RULING: Officers had PC to believe a crime had been

committed but lacked sufficient info to determine which

occupants committed the crime- arrests and the search

were therefore found illegal

g. Ker v Califronia: PO had visual observations and informants tip

that Ker had engaged in the purchase/sale of marijuana. PO

entered Kers apt. Both Ker and Wife were present, found

marijuana near kitchen sink, arrested them both.

i. RULING: Upheld arrests. Marijuana in small space by

kitchen sink+informants tip+observation=sufficient

grounds for a rsbl belief Wife was committing offense.

h. Ybarra v Illinois: Police had a valid search warrant authorizing

search of a tavern believed to be a center for drugs transactions

and search of the taverns bartender. PO searched patrons found

in tavern, including Ybarra.

i. RULING: Court held warrant did not give officers authorityinvade const. protestions possessed indiv. By taverns

patrons.

1. PROBABLE CAUSE ofperson: Seizuere of person

must be supported by prob able cause particularized

with respect to that person.

a. EXCEPTION: Belief that ones armed and

dangerous.

i. No suspicion found in Ybarra

i. Maryland v Pringle: Unanimously upheld the arrest of all 3

persons in a car in which cocaine was found, after each denied

ownership of cocaine.

i. RULING: Occupants of a car are much more likely to be

engaged in a common enterprise than patrons at a public

tavern.

ii. DISTINGUISHED from Di Re: Informant had singled out

someone other than Di Re as the guilty party. In Pringle,

there were no such informant.

2. INVESTIGATIVE PROFILES

a. Reid v Georgia (1980): Whether a narcotics agent had rsbl

grounds to stop 2 individuals because they met the following

elements of an informal drug courier profile.

i. Petitioner had arrived from Fort Lauderdale, PPO for

Cocaine.

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ii. Arrived early in the morning, when LawAct. Is low.

iii. He/Companion tried to conceal they were traveling

together.

iv. Had no luggage other than shoulder bags.

1. RULING: Court held this was insufficient to give rise

to reasonable suspicion

b. Florida v Royer: Detained an individual in a small airport room.

Court held actions constituted arrest, PO did not have PC.

i. Carrying Luggage that seemed heavy

ii. Was young and casually dressed

iii. Appeared nervous and evasive

iv. Paid for ticket with cash

v. Did not write full name on luggage (Different Name)

vi. Deporting from Miami (illicit drugs centers) heading to NY

(major distribution center.)

1. RULING: Court held there were sufficient Grounds to

stop the Defendant. (pg94?)

c. United States v Sokolow: Seizure at an airport. PO said behavior

had all the aspects of a drug courier.

i. Paid $2100 for two plane tickets in a roll of $20s.

ii. Traveled under name that did not match the name his

phone # was listed.

iii. Original Destination was Miami. (Source of Drugs)

iv. Stayed in Miami for only 48hrs.

v. Appeared Nervous

vi. Checked none of his luggage

1. RULING: Sufficient for a stop, but not for an arrest.

d. A seizure based on a profile should not automatically be

rejected if two conditions are met:

i. The profile is empirically proven to produce a success rate

of50% to justify an arrest, or 30% success rate to justify a

Terry Stop. And

ii. It is filed with the court prior as to stop as to prevent post-

manipulation of numbers.

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1. Profiles are unlikely to become the norm due

to difficulty in arriving at a list of traints that

lead to an empirically verifiably level of

certainty sufficient to meet probable cause or

reasonable suspicion.

3. MISTAKE

a. It is IMMATERIAL that some or all of those facts later turn out tobe false, so long as the Officer reasonably believed them to be

true at the time of arrest.

i. HOWEVER, if Arresting Officers mistake is unreasonable,

the government may be liable under 1983.

ii. Albright v Oliver: Wheter a PO violated due process

clause for arresting Albright due to relying on

uncorroborated information from an informant known to

have provided unreliable info on 50 previous occasions.

Subsequent evidence proved his innocence.

1. RULING: Court Dismissed Claim

iii. Devenpeck v Alford: Police stopped Alfords car, initially on

suspicion that he was impersonating an officer. PO realized

Alford was taping their conversation, and arrested him for

that conduct, in the belief that it violated privacy law. (No

such offense existed)

1. RULING: Court found PO had PC to arrest him for the

offense of impersonating an officer.

2. RULING: Officers motivation for arrest is immaterial

as long as he knows of facts that are sufficient to

establish PC form some crime.

4. ARREST WARRANT REQUIREMENT:

a. Arrest warrants may only be issued upon a showing of PC

and must identify with particularity the person to be

seized.

b. Common Law Rule, did arresting officer have PC to believe that:

i. A person was or had commited a felony.

or

ii. A person was committing a misdemeanor involving a

breach of the peace in the officers presence-arrest warrant

is not required.

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1. Arrest warrant is only required when: arrest on

a misdemeanor charge committed outside the

officers presence or one that does not involve the

breach of the peace.

c. Carroll v United States: Reason for an arrest w/o a warrant for

breach of the peace based on a reliable report of a felony is due

to public safety and apprehension of criminal charged with

offence at once.

i. EXCEPTION: With respect to arrest in suspects home and

arrests in the homes of third parties.

5. PUBLIC ARRESTS

a. PUBLIC

i. United States v Watson: Permitted a warrantless arrest in

public even when there is time to obtain a warrant.

1. RULING: Most public arrests are made under exigentcircumstances, a different decision in Watson would

have affected only a small number of people.

b. CURTILAGE of ONES HOME

i. United States v Santana: PO arrived at house to find her

standing in her front doorway. She saw police and

retreated by shutting door. PO then entered and effected

arrest w/o a warrant

1. RULING: Affirmed validity of arrest. While inDoorway, she had no expectation of privacy, and

therefore here arrest was permissible under a

Watson public-arrest analysis. When she

retreated, she created exigent circumstances

necessitating warrantless entry.

6. ARREST IN HOME

a. WARRANTLESS HOME ARRESTS

i. Payton v New York: Police officers need either a w

warrant or probable cause plus exigent circumstances

in order to make a lawful entry into a home.

ii. If there is sufficient evidence of a citizens

participation in a felony to persuade a Judicial

Officer that his arrest is justified, it is const.

responsible to require him to open his doors to the

officers of the law.

7. ARREST IN THIRD PARTY HOMES

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a. Steagald v United States: Must obtain an Arrest Warrant and

also a Search Warrant, based upon PC that the suspect is

located in the Third Parties Home.

i. RULING: Under Payton, an arrest warrant is sufficient

authority to enter ones own home.

ii. RULING: Under Watson, police can always arrest a suspect

in public, thus can wait to apprehend him as he leaves thedwelling.

iii. RULING: A warrant is not required to enter a house when

exigent circumstances make obtaining one unfeasible.

8. HOT PURSUIT: THE EXCEPTION TO THE WARRANT REQ.

a. PRIOR:

i. Payton and Steagald: exigent circumstances justify a

warrantless entry to effect an arrest.

b. HOT PURSUIT:

i. Warden v Hayden: Police were informed that Defendnat

had robbed a taxi at gunpoint and had been followed to a

particular house. Within 5 minutes, police had arrived at

home, entered, and arrested the Defendant

1. RULING: Court upheld the arrest because the 4th AM

does not require PO to delay in the course of an

investigation if to do so would gravely endanger

their lives or lives of others.

ii. United States v Santana: With PC to arrest defendant, PO

followed her inside her house after spotting her in the

doorway, to require a warrant would have permitted her

almost certain escape.

iii. Minnesota v Olson: A warrantless intrusion may be

justified by hot pursuit of a fleeing felon, or imminent

destruction of evidence.

iv. Welsh v Wisconsin: Police had PC to believe Defendant was

driving while intoxicated based on witness account of

driving erratic, crash car, and acted bizarre upon leaving

immobilized car. Police found address from registration left

in open car, police went to home, arrest him, took a blood

sample, all without a warrant.

1. RULING: Arrest was Invalid. Court stated, When the

offense is a noncriminal minor one, a warrantless

home arrest cannot be upheld simply because

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evidence of the BAC might dissipated while the

police obtained a warrant.

v. EXIGENCIES PERMITTING WARRANTLESS ENTRY

1. Imminent Danger to Others (Hayden)

2. Imminent Escape of the Suspect (Santana)

3. Evidence Would Otherwise be Destroyed(Olson)

4. The Gravity of the Offense (Wisconsin)

vi. Dorman v United States: Identified 7 factors that might

permit warrantless entry:

1. Offense under investigation is grave

2. Suspect is reasonably believed to be armed

3. Police have a high degree of PC for the arrest

4. Especially strong reason to believe that the suspect

will escape if not quickly apprehended

5. Entry may be made peaceably

6. Entry is during the day

a. (6) AND (7) are an attempt to limit

intrusiveness of a warrantless entry.

i. PC and true exigency are present,

then a warrantless entry occurring at

night should not be prevented.

9. EXECUTING AN ARREST

a. What time constraints does an arrest warrant place on an Officer?

b. When are policed required to knock and announce their

presence when they make a home arrest?

c. When may police use deadly force to effect an arrest?

d. What are the consequences of mistakenly arresting the wrong

person?

e. To what extent may the police search individuals whom they

arrest?

10.METHOD OF ENTRY

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a. REQUIRES NOTICE

i. REASONING:

1. Needless property destruction will be avoided

2. Needless violence by surprised or fearful occupants

will be prevented.

3. The dignity and privacy of the occupants will berespected.

b. 18 USCA 3109: an officer may break open any outer/inner door

or window of a houseto execute a search warrant, if after notice

of his authority and purpose, he is refused admittance.

i. Wilson v Arkansas: Court held that knock and announce

rule is an element of the reasonableness inquiry under

the Fourth Amendment.

1. EXCEPTION: Police need not knock and announceunder exigent circumstances.

a. THREAT OF PHYSICAL VIOLENCE

b. POTENTIAL ESCAPE

c. POTENTIAL OF EVIDENCE DESTRUCTION

ii. Richards v Wisconsin: Must Knock and Announce unless

they have reasonable suspicion that such action

would be dangerous or that it would inhibit the

effectiveness of the investigation. Ex: Destruction ofEvidence.

1. United States v Ramirez (1998): Reasonable

Suspicion of exigency justifies a no-knock entrance

even when the entrance requires that the door be

broken through.

2. United States v Banks (2003):Justified breaking

down the door after a knock and announce fails to

elicit a response.

3. Banks:Police executing a warrant to search for

cocaine waited 15-20seconds after they

knock/announce.

a. RULING: Court held that damage necessary to

effect an entry is always permissible if

exigency exists. (15-20 Seconds does not

seem unrealistic as to how long it takes to get

rid of cocaine.)

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4. Miller v United States: Arrived at Millers Apartment

at 3:45am, without a warrant, for purpose of

arresting Miller for narcotics offense. Miller asked

who it was, Identified they were police, then opened

door slight w/chain as to inquire to their purpose

Prior to any response, began to close door when

Police broke chain to enter/arrest Miller.

a. RULING: Court never adequately announcetheir purpose prior to forcible entry, Closing of

door was ambiguous as to whether he had

understanding they were there to arrest him.

c. UNLOCKED DOOR

i. Sabbath v United States: Whether 3019 was triggered

since the officers did not break open the door.

1. RULING: An unannounced intrusion into a dwelling, is

no less unannounced intrusion whether officerbreaks door, force open chain lock on partially open

door, open a lock door with a passkey, or open a

closed unlocked door.

d. USE OF DEADLY FORCE

i. ALI Model Code of Pre-Arraignment Procedure

1. 120.7: An officer may use such force as is

reasonably necessary to effect the arrest, to enter

premises to effect the arrest, or to prevent the

escape from custody of an arrested person.

a. DEADLY FORCE: is authorized when the arrest

is for a felony, and the use of such force

creates no substantial risk to innocent

persons, and the officer reasonably

believes that the felony involved the use or

threat of deadly force or substantial risk

that the arrestee will cause other deaths or

serious bodily harm if deadly force is not

employed.

ii. Graham v Connor: All claims of excessive force-deadly or

not, involving arrest or seizeure-are governed by the

Fourth Amendment reasonableness requirement

1. Severity of the Crime

2. Whether suspect poses an immediate threat

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3. Whether he is actively resisting arrest or attempting

evade arrest by flight.

iii. Scott v Harris: High-Speed chase where PO car pushed

Harriss bumper into an embankment and roll over. He was

rendered quadriplegig post crash.

1. RULING: Court found PO used deadly force, found

this force was reasonable., because Harrisendangered the lives of innocent bystanders.

a. 1983: PO is only liable if prior law had

clearly established that the particular

force was excessive

iv. Brosseau v Haugen: PO shot a man in th beack as he tried

to drive away.

1. RULING: Court granted immunity from suit, Shooting

a fleeing driver to prevent harm to pedestrians and

other drivers is reasonable.

2. RULING: Excessive force is determined objectively

11.MISTAKE AS TO IDENTITY

a. ARREST of wrong person is valid for purposes of determining the

admissibility of any evidence thereby discovered if the mistake

was reasonable.

i. Hill v California: Police had PC to arrest hill, went to apt and

knocked, Miller (who fit Hills description) answered andwas then arrested. Miller then provided ID that he was not

Hill.

1. RULING: Aliases and Fake ID is not uncommon.

2. RULING: Miller Denied firearms in apt, when loaded

pistol was in plain-view. Sufficient Probability, not

certainty, is the touchstone for reasonableness

under Fourth Amendment.

a. PO mistake was reasonable response to

situation.

12.DUE PROCESS LIMITATIONS

a. When attempts to arrest are not seizures they may be only

regulated by Due Process Clause, if at all.

i. Sacramento v Lewis: Civil Suit against a PO whose high-

speed chase of a motorcycle ended him running over and

killing the 16yo passenger on Motorcycle.

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1. RULING: Police Chase is not a seizure within the

meaning of the Fourth Amendment, the stop in

this case was not a seizure because it did not

involve governmental termination of freedom of

movement through means intentionally applied.

2. RULING: Officer intended to stop the motorcycle, but

not by running over its riders, therefore Fourth

Amendment was not applicable.

3. EXCEPTION: When Police action Shocks the

Conscience.

ii. CONCLUSION

1. An illegal arrest or detention standing alone has little impact on

subsequent prosecution.

a. REMEDY FOR CITIZEN: 1983

2. Arrest is some type of restriction of an individuals liberty by Police.

a. Must be based on Probable Cause

b. Tery-Stop

i. Reasonable Suspicion of Criminal Intent (Less than PC)

c. FACTORS in determining whether a Seizure is an Arrest

i. Purpose

ii. Manner

iii. Location

iv. Duration

3. Probable Cause is an objective standard=RSBL grounds to believe

suspects has committed an offense

a. Informant gives factual basis for PC

i. ULTIMATE TEST: Totality of the Circumstances

ii. Aguilar Test

1. Whether sufficient facts are available to inform

magistrate of how informant reached his conclusions

2. Whether sufficient indicia of the informants

reliability exists

b. Police Officers own Observations

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i. Only indica of criminality independent of the arrest (but

including patdown based on rsbl suspicion) bay be relied

upon to develop PC.

c. Failure to Identify Oneself

i. Combined with reasonable suspicion of crime, may justify

an arrest.

d. Reasonable Mistake

i. As to the fact underlying PC does not render the arrest

invalid, nor does arrest for a non-existent crime as long as

an actual crime has been committed

4. Arrest warrant in PUBLIC

a. Is not required to effect an arrest when the PO has probable

cause to believe that a felony has been committed or that a

misdemeanor is being committed in his presence

i. HOWEVER: A warrant is required to make an arrest in a

private dwelling

1. EXCEPTION: Unless exigent circumstances are

present.

b. Third Parties

i. Police must obtain a search warrant before they may

enter the house of a third party to effect a non-exigent

arrest.

5. Police must knock and announce their purpose before entering to

make an arrest.

a. EXCEPTIONS

i. Suspect might escape

ii. Harm Someone

iii. Destroy Evidence

6. Deadly Force

a. Permitted to used deadly force only if there PC to believe it is

necessary to prevent both:

i. Escape

ii. And use of deadly force by the suspect.

b. DUE PROCESS CLAUSE

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i. Prohibits actions short of arrest that shock the

conscience

II. CHAPTER 4: Analyzing when SEARCHES Occur and When they Reasonable

a. INTRODUCTION:

i. When is the Fourth Amendment implicated by the evidence-gathering activity

in question?

ii. ALL elements must be present for Fourth Amendment to be implicated:

1. Whether the intrusion is the product of governmental action

2. Whether it breaches societys reasonable expectations of privacy

3. Whether it breaches the legitimate expectations of privacy

b. DEFINITION OF GOVERNMENTAL CONDUCT

i. PRIVATE CITIZEN

1. When a private individual illegally acquires evidence which the

government later seeks to use in criminal prosecution, no 4th

amendment violation upon which to support a motion to exclude.

2. Burdeau v McDowell: Private individual illegally entered and searched

McDowells business office and seized papers. These papers were later

turned over to Attorney General.

a. RULING: Fourth Amendment is meant to be a restraint upon the

activities of sovereign authority, not private individuals.

3. Coolidge v New Hampshire: If a private citizen on his own intitiative

turns over certain articles to the police for a criminal investigation,

evidence is admissible.

4. Whether Governmental Conduct Occurred:

a. Who is a Government Official?

b. When is a private citizen, not acting wholly on his own intiative?

c. Once it is established an action is purely private, what subsequent

government action does the private search authorize?

d. When, if ever, action by a foreign government implicate the 4th

amendment?

ii. GOVERNMENT OFFICIALS

1. Police employed by Government Entity are covered

2. Regulatory officials

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a. Camara v Municipal Court: Searches by regulatory officials

conducting safety and health inspections are subject to 4th Am

requirements.

3. Government Agencies

a. For internal, work-related investigations.

4. Public School Teachers

a. New Jersey v TLO:Teachers act in furtherance of publicly

mandated educational and disciplinary policies, therefore they are

acting as government officials-not as parents.

iii. GOVERNMENT OFFICIAL? NOT EMPLOYED BY GOV:

1. Not Employed or Influenced in any Direct Manner. Fourth Amendment

does not apply:

a. Store Detectives

b. Security Guards

c. Insurance Inspectors

i. MINORITY: Primary Purpose of private personnel is to

supplant the public police, 4th should apply.

iv. GOVERNMENT AGENTS

1. TEST: Whether the private citizen in light of all the circumstances of the

case, must be regarded as having acted as an instrument or agent of

the state.

2. SUFFICIENT STATE ACTION:

a. Officers actively join in the private search

b. Instruct the private individual to conduct it

c. Alcohol/Drug Test carried out by private employers which are

mandated/strongly encouraged by Gov. Reg.

3. OFFICIAL MERELY PROVIDES INFORMATION

a. When a government official does not direct the private action,

but merely provides information that leads to it, 4th does not

apply.

b. People v Boettner: Upheld search by private university officials

based on info supplied by the police.

i. REASONING: The private search had been conducted

without knowledge of the police, who had been proceeding

with their own investigation.

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c. United States v Lamar: PO notified an airline employee that he

was interested in a certain unclaimed bag, believing it to belong

to a person suspected of various narcotics. Employee searched

bag for identification and found what they both believed to be

heroin.

i. RULING: 4th Am not implicated because the officer had

neither requested nor physically participated in the

search, and the employee was acting in the usual andordinary course of his customary duties when he searched

the bag for id/address purposes.

ii. PROBLEM: The Result ofLamarencourages police to use

private parties as a means of evading 4th Am.

4. WHAT A PRIVATE SEARCH AUTHORIZES

a. When Government later seeks to benefit from Private Search.

i. Walter v United States: Invalidated a conviction which was

based on the warrantless viewing of obscene films by the

FBI. Already opened by private party prior.

1. REASONING: Since private parties had not actually

viewed the films, the FBI was constitutionally

prohibited from viewing w/o a warrant.

a. No Prior Private Person Knowledge.

ii. United States v Jacobsen: FedEx employees opened a pkg

which had been damaged by a forklift and found a Tube

which contained white bags of powder. They then notifiedDEA.

1. RULING: Allowed warrantless search by a DEA

official, enabled the agent to learn nothing that had

not previously been learned during the private

search

a. Private Person Knowledge Prior

iii. SUGGESTED by Justice White:

1. Permit warrantless searches only of those items the

police find in plain view as a result of the private

partys search.

5. SEARCHES IN FOREIGN COUNTRIES

a. Search of an American Citizen conducted in a foreign country by

foreign police does not implicate the 4th Amendment, even if

provided by American Authorities.

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b. SUBSTANTIAL CONNECTION?

i. United States v Verdugo-Urquidez: DEA Agents, assisted by

Mexican authorities, conducted warrantless searches of

two Mexican residences of a Mexican citizen who had been

turned over the US two days earlier.

1. RULING: Defendants sole connection with the US

was his Detention

2. RULE: Courts have denied Fourth Amendment Rights

to Aliens inside/outside our country.

6. DEFINITION OF SEARCH and SEIZURE

SEARCH:

a. A search occurred solely when there was a physical intrusion into

one of the constitutionally protected areas set out in the 4th

Am: persons/house/paper/effects.

b. The 4th Amendment protects people, not places.

i. Katz v United States: Words spoken in a public telephone

booth overheard on an electronic eavesdropping device

were constitutionally protected.

1. REASONING: A person who occupies a phone booth

shuts the door behind him, pays, one is entitled to

assume that the words he utters will not be

broadcast to the world.

c. EXPECTATION of PRIVACY: Purely Objective.

i. Public Exposure Doctrine

ii. Reasonable Expectation of Privacy Doctrine.

7. UNDERCOVER and INSTITUTIONAL AGENTS

a. Gouled v United States: Court found unreasonable an undercover

agents search of the Defendants desk, although the defendant

had invited the agent into his office, he had not consented to

him going through his papers.

i. DISTINGUISHED

1. Lewis v US: Fourth Am. Did not apply to an

undercover agents entry into a home for the

purpose of completing a drug transaction, when the

owner had invited him there over the phone.

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2. Hoffa v United States: 4th Amendment does not

prevent using agents to eavesdrop, so long as the

Defendant is aware they are listening.

b. Whether an undercover agent can wear an eavesdropping

device?

i. On Lee v US: Court held that because the defendant invited

the agent who was bugged into his laundry andvoluntarily conversed with him, no search had occurred.

Device merely improved the accuracy of governments

evidence.

c. RE-AFFIRMED Katz

i. Maryland v Macon: Undercover agents entry of an adult

bookstore during regular hour and examination of

materials offered for sale did not constitute a search.

d. USE OF EVERY DAY INSTITUTIONS AS UNDERCOVER AGENTS

Voluntary of Assumption of the Risk

i. BANKS

1. United States v Miller: Court held a subpoena of

records containing financial information voluntarily

surrendered to a bank is not a search for 4th Am.

Purposes.

ii. PHONE COMPANY

1. Smith v Maryland: Person does not have a

reasonable expectation of privacy in the identity of

phone numbers he calls, because he knows that

these numbers are recorded as a matter of routine

by the phone company.

iii. Congress now requires Government to obtain a

subpoena or court order before Bank and Phone

Records may be obtained.

8. PHYSICAL CHARACTERISTICS (Physical Attributes)

a. DOES NOT implicate 4th Amendment.

b. Voice

i. United States v Dionisio: Subpoened to give voice

exemplars for identification purpose. Fourth Amendment

did not apply.

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1. REASONING: Physical characteristics of a persons

voice, tone, manner, as opposed to a specific

conversation, is constantly exposed to the public

c. Handwriting

i. United States v Mara: Any physical characteristic that is

discernable by mere observation coulbe included amont

those things a person holds out to the public

9. OPEN FIELDS/CURTILAGE

a. Homes and Private Offices are protected by the Fourth Am

i. AREAS ADJACENT may not.

1. Oliver: (Open Fields Doctrine) Entry on to Private

Property that was fenced in and marked by No

Trespassing Signs.

2. Oliver v US: Landowners do not possess a legitimate

expectation of privacy in fields which are far

removed from the landowners home and

curtilage, even if efforts have been made to

maintain some degree of isolation.

a. These lands usually are accessible to the

public and the police in ways that a Home,

office, commercial structure would not be.

b. AERIAL SURVEILLANCE

i. Dow Chemical Co. v US: Aerial Surveillance of property did

not violate legitimate expectations of privacy.

ii. Dow Chemical: EPA hired an Aerial Photographer to

photograph the defendants plant from the air after he had

refuse on-site inspection.

1. REASONING: Did not involve physical intrusion, did

not reveal identifiable human faces, secret

documents or any interior that implicated privacyinterests.

iii. California v Ciraolo: Police received anonymous phone tip

the defendant had marijuana in backyard. A plane took a

photograph from 1000ft above backyard.

1. RULING: 4th Am does not apply. Police observation

took place in Public navigable airspace, anyone

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could have spotted the marijuana with the naked

eye.

c. FACTORS

i. Determining when an area is within the curtilage of

the Home

1. Proximity of the Area claimed to be curtilage of the

home.

2. Whether in an enclosure surrounding the home.

3. The Nature of the use

4. Steps taken by the Resident to protect the area from

observation by people passing by.

ii. US v Dunne: Police entered the Defendants property

without a warrant, climbed several fences, peered inside a

barn, discovering evidence of drugs, subsequently obtaineda warrant to enter barn and seize drugs and chemicals.

RULING: Initial viewing was valid

1. Barn was not on the D curtilage

2. The Barn was 60yd from Home and 50yd outside the

fence enclosing the home.

3. Used to produce drugs rather than the house

intimate activities of the home

4. Surrounded only by low fences designed to corral

livestock rather than prevent persons from viewing

the barn.

10.CARS AND CONTAINERS

a. ABANDONED

i. No Fourth Amendment Right Attaches

b. GARBAGE

i. California v Greenwood: No legitimate expectation of

privacy exists in garbage left in opque bags outside the

curtilage of the hojme

c. INTERIOR OF CARS

i. Usually require constitutional mandates

d. CONTAINER

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i. United States v Chadwick: Warrant is necessary to search a

locked footlocker in public because of personal effects.

e. SUITCASES

i. Arkansas v Sanders: Only non-abandoned containers which

reveal the nature of their contents such as a transparent

vial or a gun case are not protected.

1. Transparent or Obvious=Not Protected

f. GRAB-CAIN DOCTRINE

i. Bond v US: Border Patrol Agent conductin immigration

check squeezed defendants Bag and noticed a brick-

like object.

1. RULING: Court held that meth should be excluded,

People do not expect there Luggage to be handled

in a exploratory manner.

ii. Lo-Ji Sales v New York: Local officials seized books and

filves off the shelves without paying for them and

examined them despite not being opened yet. Constituted

a Search and Seizure.

1. REASONING: Police were not acting like the ordinary

Not a search/seizure if undercover agent had

purchased the material as a customer would.

11.CONTROLLED DELIVERY

a. Does not Implicate the Fourth Amendment

i. A container which is lawfully intercepted and searched,

found to contain contraband, repackaged, and then

delivered to the addressee.

ii. Illinois v Andreas: Routine inspection at airport, customs

agent open a metal container which house a wooden table,

inside of which contained drugs. Container was resealed

and delivered to Defendants apt. Within 45minutes hecame out of the apt with container and was arrested.

1. RULING: No search occurs when the container is

reopened after the controlled delivery.

12.ENHANCEMENT DEVICES

a. FLASHLIGHTS

b. DOGS SNIFFS

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c. SATELLITE PHOTOGRAPHY

i. FACTORS

(1)Nature of the Place Surveilled

ii. US v Katz: Federal agents obtained permission to place a

beeper in a 5 gallon container of chloroform, which was

subsequently picked up by D. Agents lost sight of D, but

were able to track D to a cabin due to the beeper.

1. RULING: Upheld, 4th Amendment did not attach.

a. REASONING: Person traveling in an

automobile on public thoroughfares has no

reasonable expectation of privacy in his

movements from one place to another.

iii. US v Karo: Beeper was used not only to track a container to

a particular house, but also to track its departure from that

house and its arrival at a public warehouse.

1. RULING: Upheld, even with use of Beeper to discover

information that would have been difficult to obtain

from a public vantage point

d. MOVEMENT WITHIN HOUSE

i. Fourth Amendment Implicated

1. When a beeper is used to detect the movement of

something once it is inside a house.

ii. Kyllo v US: Police used a device that registered relative

heat of Kyllos home, in an attempt to discover high-

intensity lamps used to grow marijuana. Based on results

of scan, they obtained a warrant to search house

1. RULING: Where technology is not in GENERAL

PUBLIC USE, the Fourth Amendment is implicated.

a. REASONING: Thermal Imaging Devices detect

I ways that the human senses could never

duplicate.

2. THE NATURE OF THE ACITIVITY SURVEILLED

iii. US v Jacobsen: Testing a substance strongly believed to be

cocaine is not a search

iv. US v Place: having a dog sniff luggage which alerts police

only the presence of contraband does not implicate the 4th

amendment

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What will constitute an arrest?

1. Any action that makes it impossible for an individual to leave

a. Ex: Handcuffs, Full Body Search, Forced Movement

ii. ULTIMATE TEST:

1. Totality of the Circumstances

a. Failure to Identify oneself

b. Reasonable suspicion of crime

i. A reasonable mistake as to the facts underlyint the PC does

not render the arrest invalid.

d. PUBLIC: An arrest warrant is not required to effect an arrest in Public

e. PRIVATE: Arrest warrant is required to make an arrest in a private dwelling, unlessexigent circumstances are present.

i. Knock and Announce unless:

1. Reasonable suspicion that the suspect might escape, harm someone or

destroy evidence.

f. FACTORS IN DETERMINING whether there has been a Seizure:

i. Purpose

ii. Manner

iii. Location

iv. Duration of the Detention

VIII. SEIZURE

a. Terry v Ohio: reasonable suspicion of criminal intent

Chanley Added SectionCh.4 pg134 - 161

4.03 The Definition of Search and Seizure

(f) Enhancement Devices

(3) The care Taken to Ensure privacy

o Courts look at the extent to which steps have been taken to enhance privacy of that place.

Ciraolo case the fact that the Ds fence was only 10feet high and thus would not have keptobservers on a truck or double-decker bus from seeing backyard helped justify aerialsurveillance, even though on the residential cartilage

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(4) The lawfulness of the vantage point

o Is a street, sidewalk, an apartment hallway or public airspace; private property can also be a

lawful vantage point p. 135*

(5) The availability and sophistication of the technology

o Dow Chemicalcase: using highly sophisticated surveillance equipmt not generally

available to the public such as satellite technology might be constitutionally prescribed absentwarranto Pg. 136*

(6) The extent to which technology enhance the natural senses

o Minimal enhancement of naked eye observation is not a search

o Kyllo: if activities viewed through binoculars or nightscope could also have been seen w/

naket eye from public vantage point but were not so viewed to avoid detection the 4thAmend isnot implicated

(g) Government Monitored Institutions

- Privacy interest are minimal b/c a person should know his person effects will be exposed to govagents; ex. Limited exp of privacy at international border; licensed gun dealer (regulated business);

prisoners cell;

(h) An Alternative Definition

- Question of when police conducted a search for purposes of 4th A is important since it determineswhether the reasonableness and warrant requirements of that constitutional provision need be met

- The alternative definition in book is a sliding scale approach pg. 139

4.04 Standing

Not every individual who is subjected to a search as defined above has standing to contest the action. Aright to exclude evidence that is illegally obtained doesnt automatically vest in the person agst. Whom itis used, even when the person can prove that the purpose of the search was to gather evidence agst him;

under current law that right may be asserted only by those individuals who privacy is directly violated bythe gov action.

(a) Property-based Standing

- Originally, the standard was if one had a possessory interest in either the thing seized or the placesearched was one able to assert a 4thA claim pg. 140

(b) The Jones Criteria

- Jones v. US: Jones was denied standing in lower ct b/c he could claim no possessory interst in theplace searched. Ct changed standing law and to replace the property based rules, the Ct created twoindependent tests

o Ds charged w/ possessory offenses have automatic standing.o Anyone legitimately on premises where a search occurs may challenge its legality by way

of a motion to suppress when its fruits are proposed to be used agst him

(c) Legitimate Expectations of Privacy Analysis

- Standing is a legitimate expectation of the place searched- Katz v. US: lead to elimination of both of Jones standing criteria. Ct used expectation of privacyanalysis

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- Rakas v. Ill: Ct explicitly recognized the connection b/w search and standing analysis as Ct heldthat standing should depend on whether police action sought to be challenged is a search violation oflegitimate expectations of privacy) w/ respect to the person challenging the intrusion

o Ct held that Ds didnt have standing to contest search of a car merely b/c they were

passengers in it at the time;- Rawlings v. Kentucky: even if D claimed possessory interest in the items seized they would nothave standing to contest search by virtue of that fact alone- US v. Salvucci: abolished Jones automatic standing

(d) Current Standing Rules

- w/ the endorsement inRakas of the expectation of privacy approach to standing, the Ct has movedtoward a totality of the circumstances analysis

(1) The right to exclude others

o If have this right, then have standing to contest search

o If you are not home you can contest conversations in your home

o Right to exclude can also be asserted by non-owners can exclude others from phone

booth and when house-sitting

(2) Continuing access plus possessory interesto When the above dont apply, continuing access to the property (in US v. Jeffers it was aunts

apartment) and claiming possessory interest in the seized contraband was suff to gain standingo U.S. v. Padilla: Ct said D had to have property interest protected by 4thAm that was

interfered w/ by the stop of the car or a reas.expectation of privacy that was invaded by thesearch.

(3) Legitimate presence plus possessory interest

o Minn v. Olson: D had standing to contest that police didnt have warrant when arrested him

there; overnight guest seeks shelter b/c it provides him w/ privacy a place where he and hispossessions will not be disturbed by anyone but his host and those his host allows inside

o Ppl who are in a residence for only a few house, on business, and who have little or noprevious relationship w/ the owner or occupants of premises do not have standing to contestsearch of premises (as opposed to personal belongings)-Minn v. Carterpg 147

(4) Bailment

o Rawlings case, his bailment of his drugs to Cox had been too precipitous to create and

expectation of privacy, the bailment issue implies that were one to make valid bailment a legitexpectation of privacy might be establishedo But US v. Miller person who voluntarily surrenders ino to a bank lacks standing to

contest a subpoena for records containing that info

(5) Subjective expectations of privacyo This is factor that shouldnt play a role in the standing inquiry but Rawlings Ct considered

the Ds own perception of his privacy interest

4.05 Detmining Whether a Search or Seizure is Reasonable

If it is determined that a given search or seizure doesnt implicate the 4 th A, then the evidence so procuredis admissible in subsequent prosecution

If 4thA right does exists, the next step is to determine whether the governments conduce was reasonable

(a) The Warrant Requirement

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- Caselaw can be organized around 4 types of exceptions to the warrant requirement;1. Exceptions based on a perception that exigent circumstances make obtaining a warrant

impossible or impractical (hot pursuit)2. Exceptions resting on a finding that the police action does not impinge upon a substantial

privacy interest(heavily regulated industry exception)3. Situations involving special needs of law enforcement (a phrase coined by SCOTUS) where

warrants might frustrate legitimate purposes of the gov other than crime control (public schoolsearch exception 13.08); and

4. Situations where warrants are considered unnecessary b/c other devices already curb policediscretion (the inventory search exception 13.07)

(b) The PC Requirement

- If search requires warrant, it must be based on PC. If search doesnt require SW these factors mustbe considered:

1. Intrusiveness of search2. Nature of the harm being investigated3. Difficulty of detecting the harm if PC is required4. Extent to which a pc requirement would disrupt smooth gov functioning (ex. Of

railway workers pg. 152)

(c) Adequacy of the warrant

- To be valid a warrant must:oBe issued by a neutral and detached decisionmaker

oBe based on PC that items sought are in place to be searched

oDescribe w/ particularity the place to be searched and the items to be seized and

oBe executed w/in a reas period of time

(d) Exceptions to the Warrant and PC Requirements

- If warrant is obtained but invalid, or if not warrant was ever obtained, evidence seized by govofficials is still admissible if discovered:

1. Incident to a lawful arrest (ch.6)2. In a movable vehicle in circumstances giving rise to the so called automobile

exception (AE) (ch.7 PC if car contains contraband or evid of crime)3. While police are in hot pursuit of a suspected felon (ch8 rob a bank)4. In an evanescent or endangering state (ch.9)5. In plain view from a lawful vantage point (ch.10)6. During a frisk after a valid stop (ch.11)7. In the course of a search authorized by a voluntary consent (ch.128. In the course of inspetionis or searches conducted for certain regulatory purposes

(ch.13 tyson chicken)

(e) Burdens and Standards of Proof- Whether a search occurred, the D has standing, a warrant was valid or one of the excpetionsapplies is usually decided at a suppression hearing prior to trial.- Burden can vary b/w defense and prosecution depending on the question involved- Voluntariness of Consent Gov bears burned of proving voluntary- Burden of proving a Gov action is asearch D (d has best access to info concerning expectationsof privacy- Standing: is similar to search issue and is on the D- Whether PC existed or a search was otherwise reasonable the Gov

4.06 Conclusion

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pg. 154 READ IT! Plus Chart!

Ch. 5: The Search Warrant

5.01 Introduction

4

th

Amendment: Warrant=probable cause, supported by Oath or affirmation, andparticularly. Sct says 4th amend also requires neutral detached decision-maker plus some otheradditional requirements

5.02 The Neutral and Detached Decision Maker

Coolidge v. NH: AG was not neutral and detached since he was also the chief prosecutor

Lo-Ji Sales, Inc. v. NY: a judicial officer, even if initially independent of the law enforcement process canlose that independence through his own actions; also, pc cannot be delegated to officers

Warrants may be issued by judicial branch officials who are not judges, in some circumstances p.161

(INSERT MATTS section pg. 160-193)??????

Ch. 6: Search Incident to a Lawful Arrest

6.01 IntroductionPg.195

Chimel v. California a search incident to arrest is permitted to remove any weapons t

combined cppt outline

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