Criminal Procedure OutlineProfessor Bluth, Spring ‘05

I. Introduction a. The meaning of ‘criminal procedure’

i. Criminal procedure refers to the methods by which the criminal justice system functions – it encompasses the arresting of suspects, the searching of premises and persons, the interrogation of suspects, the use of police lineups, the introduction of evidence at trial, etc.

1. The development of numerous constitutional limitations upon the manner in which a criminal suspect may be arrested, convicted, and punished has rendered much of criminal procedure an inquiry into constitutional law.

ii. Criminal procedure must be distinguished from the substantive law criminal law which defines actual crimes

b. Constitutional rights binding on the states: i. The following rights have been held binding on the states under the due process provisions of the

14 th Amendment: 1. 4th Amendment

i. Prohibits unreasonable searches and seizures ii. The exclusionary rule requires that evidence obtained in violation of this prohibition

can’t be used against the D 2. 5th Amendment

i. D has a privilege against self-incrimination ii. Prohibits double jeopardy

3. 6th Amendment i. D has a right to a speedy trial

ii. D has a right to a public trialiii. D has a right to trial by juryiv. D has a right to confront witnessesv. D has a right to compulsory process for obtaining witnesses

vi. D has a right to assistance of counsel in felony cases and in misdemeanor cases where imprisonment is imposed

4. 8th Amendment i. Prohibits cruel and unusual punishment

ii. Two provisions of the Bill of Rights not binding on the states: 1. The right to indictment by a grand jury for capital crimes 2. Prohibition against excessive bail

II. The Scope of the 14th Amendment a. Bodily Extractions

i. Rochin: When suspect’s stomach was pumped against his will, this search violated 14th due process

1. “It shocks the conscience” – due process can’t be defined precisely, but it does mean that convictions can’t be brought about by methods that offends a sense of justice

2. Irvine: Limited Rochin to situations involving coercion, violence, or brutality to the person ii. Schemerber: When police took blood sample from unconscious suspect, conviction upheld

1. Blood sample was being taken anyways (no 4th issue), it was a routine medical procedure (no 14th issue), and it is a physical characteristic (no 5th self-incrimination issue)

2. Generally though, Ds don’t have to undergo surgical procedures for the prosecution to recover evidence

III. Judicial Doctrinesa. The Federal Courts’ Supervisory Power

i. The federal courts may formulate procedural rules not specifically required by the Constitution or Congress

1. Purpose of supervisory power: i. To implement a remedy for violations of recognized rights,

ii. To preserve judicial integrity by ensuring that a conviction rest on appropriate considerations validly before the court,

iii. As a remedy to designed to deter illegal conductb. The Exclusionary Rule

i. This is a judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights

a. Main purpose is to deter the govt. from violating a person’s constitutional rights b. Exclusionary rule applies to federal AND state cases

ii. Fruit of the poisonous tree a. Not only must illegally obtained evidence be excluded, but also all evidence obtained or

derived from exploitation of that evidence i. The courts deem such evidence “the tainted fruit of the poisonous tree”

b. Government illegality won’t require suppression if: i. Inevitable discovery doctrine: Evidence is allowed in if it’s shown by a

preponderance of the evidence that police would’ve discovered it anyways w/o violating constitutional rights

ii. Attenuation doctrine: Evidence obtained through constitutional violation where connection has been so ‘attenuated’ as to purge the taint is allowed in (ex: taint purged where D, after released bc arrested illegally returned to station to confess)

iii. Factors for Exclusion of Evidence1. Government conduct, AND

1. The exclusionary rule is applicable to private individuals who are acting govt. agents a. Ex: Govt. asks FedEx to watch for and search packages containing illegal drugs

2. A govt. agent’s viewing of what a private party had freely made available for her inspection isn’t kept out by the exclusionary rule

2. Violation of D’s 4th, 5th, or 6th Amendment rights, AND3. Standing to raise the issue

i. D can use exclusionary rule to bar evidence obtained through a violation of her OWN constitutional right

ii. Payner: When IRS agents stole a briefcase and used documents in it to convict D of federal income tax violations, the SC held that federal supervisory power doesn’t authorize a federal court to exclude evidence that doesn’t violate the D’s 4th rights, and so the documents, although tainted, could be used.

1. So, if D isn’t a victim of the challenged govt. practice, that evidence can be used D bc D doesn’t have standing to challenge the seizure

iv. Good faith exceptiona. The exclusionary rule doesn’t apply when the police act in good faith in reliance on a

defective search warranti. Rationale: One of the main purposes of the exclusionary rule is to deter improper

police conduct, and this purpose can’t be served where police are acting in good faith b. Test to qualify for good faith exception under the exclusionary rule:

i. Was there probable cause sufficient to support a warrant? 1. No? The evidence is kept in, UNLESS yes to next question

ii. Would a reasonable police officer have known the magistrate was wrong? 1. Yes? The evidence obtained under the warrant is thrown out

v. Limitations on the Exclusionary rule: 1. The exclusionary rule is not applicable to grand juries (proceeding where it’s decided

whether an indictment shall be issued after hearing the prosecutor’s case)i. A grand jury witness may not refuse to answer questions on the ground that they are

based on evidence obtained from him in an earlier unlawful search ii. Although the exclusionary rule isn’t applicable to grand juries, it would apply to same

evidence in subsequent criminal proceedings 2. Not applicable to civil proceedings3. Not applicable to parole revocation hearings

vi. Plymouth Sedan: 1. The exclusionary rule applies to forfeiture proceedings (quasi-criminal cases)

IV. Sixth Amendment Right to Assistance of Counsela. The Right under the Amendments

i. 6th Amendment: In all criminal prosecutions, the accused … shall have the assistance of counsel for his defense

1. This right applies at all critical stages of a prosecution after formal proceedings have begun2. If the right to counsel is denied at trial, a conviction will automatically be reversed

ii. 5th Amendment, as under Miranda1. This right applies at all custodial interrogations

b. Fairness towards the poori. Poverty excludes an individual from acquiring the necessary resources to defend herself. While the

govt. may not be required to relieve the accused of her poverty, it may properly be required to minimize the influence of poverty on the administration of justice.

c. Stages when the right is applicable: D has the right to be represented by privately retained counsel or to have counsel appointed for him by the state if he is indigent at the following stages i. Miranda: Custodial police interrogation

ii. Massiah: Post-indictment interrogation whether custodial or notiii. Coleman: Preliminary hearings to determine probable cause to prosecuteiv. Hamilton: Arraignmentv. Moore: Post-charge lineups

vi. Mempa, Moore, Townsend: Guilty plea and sentencingvii. Gideon: Felony trials

viii. Powell: In capital punishment trialsix. Scott, Shelton: Misdemeanor trials when imprisonment is actually imposed or a suspended

jail sentence is imposed x. Johnson: In federal court

xi. Douglas: Appeals as a matter of right (1st appeal)d. Stages when the right is NOT applicable: D doesn’t have a constitutional right to be represented

by counsel at the following stages i. Schmerber: Blood sampling

ii. Gilbert: Taking of handwriting samples or voice exemplars iii. Kirby: Pre-charge or investigative lineupsiv. Ash: Photo identifications v. Gerstein: Preliminary hearings to determine probable cause to detain

vi. Ross: Discretionary appealsvii. Gagnon: Parole and probation revocation hearings

viii. Finley, Murray: Post-conviction proceeding (ex: habeas corpus) including petitions by death-row inmates

ix. Middendorf: Court martial proceedings

Right to assistance of counsel, continuede. Equality principles

i. Right to counsel in special circumstances : 1. If there are fact sensitive issues that need the assistance of counsel, even in for ex., a

probation hearing, counsel should be appointed i. Counsel will be appointed in military tribunals for serious charges w/ serious penalties

2. Gault: Juvenile court proceeding - Juvenile and parent must be informed of right to appointed counsel if the juvenile court proceeding may result in the loss of freedom

3. Lassiter: Counsel is appointed on a case-by-case basis in parental termination proceedings ii. Transcripts :

1. Griffin: All indigent Ds must be furnished a transcript of the trial proceedings, at least where allegations that manifest errors occurred at the trial aren’t denied

iii. Expert services: 1. Ake: When D has made a preliminary showing that his sanity at the time of the offense is

likely to be significant at trial, the state must provide access to psychiatric examination and assistance necessary to prepare effective defense

f. Right to Counsel of One’s Choicei. The selection of counsel for an indigent D is at the discretion of the trial court

1. Harris: Limited a trial judge’s discretion to appoint counsel when D showed objective considerations supporting his choice of appointed counsel

ii. Slappy: 6th only guarantees competent representation, not a meaningful attorney-client relationship

g. Waiver of Right to Counsel and Right to Defend Oneself i. Faretta: D has the absolute right to represent herself at trial as long as her waiver of the

right to counsel is KNOWING & INTELLIGENT (Johnson: “An intentional relinquishment of a known right”)

1. The court must carefully scrutinize the waiver to ensure that D has a rational and factual understanding of the proceeding against her

2. However, D need not be found capable of representing herself – the D’s ability to represent herself has no bearing on her competence to choose self-representation

3. Competency to plead guilty or waive right to counsel doesn’t need to be measured by a higher standard than the competency standard for standing trial

4. A back-up attorney may be appointed and may intervene to a limited extent, as long as the impression of self-representation isn’t destroyed

5. On appeal, D has no right to represent herself

h. The Right to Effective Assistance of Counsel i. The 6th right to counsel includes the right to effective assistance of counsel

ii. The ineffective assistance claim is the most commonly raised constitutional claim – D seeks to secure not malpractice damages, but rather a reversal of his conviction and a new trial

iii. Effective assistance presumed: 1. Effective assistance of counsel is presumed unless the adversarial process is so undermined

by counsel’s conduct that the trial can’t be relied upon to have produced a just result iv. Circumstances constituting ineffective assistance of counsel: An ineffective assistance claimant

must show 1. Deficient performance by counsel, and 2. But for such deficiency, the result of the proceeding would’ve been different (ex: D

wouldn’t have been convicted, or his sentence would’ve have shorter)i. Typically, such a claim can be made out only by specifying particular errors of trial

counsel, and can’t be based on mere inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel

v. Ineffective assistance of counsel presumed: There are some circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified

1. For ex., complete denial of counsel, denial of counsel at a critical stage of trial, state interference w/ the ability of counsel to make decisions about how to conduct defense, where counsel actively represented conflicting interests, and where the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed w/o inquiry into actual performance at trial.

vi. Burdine (Sleeping Lawyer case): 1. The unconscious attorney is no different from an attorney that is physically absent from trial

since both are equally unable to exercise judgment on behalf of their clients. 2. Such absence of counsel at a critical stage of a proceeding makes the adversary process

unreliable, and thus a presumption of prejudice is warranted3. This isn’t a per se rule though.

vii. Failure to argue nonfrivolous issues1. An indigent D has no constitutional right to compel his appointed lawyer to argue

nonfrivolous issues that counsel decides, in the exercise of her professional judgment, not to present

viii. The failure of D’s counsel to raise a federal constitutional claim that was the law at the time of the proceeding but was later overruled doesn’t prejudice the D w/in the meaning of the 6th and doesn’t constitute ineffective assistance of counsel

i. Actions by Counsel i. Caplin & Drysdale:

1. Contingent fees in criminal cases are unethical and un-allowed2. The right to counsel doesn’t forbid the seizure of drug money and property obtained w/ drug

money, even when such money and property were going to be used by D to pay his attorney of choice

ii. Nix1. D led his counsel to believe that he was going to lie in his testimony during trial. His lawyer

advised him not to, but he did anyways. D was found guilty, and moved for a new trial, claiming he had been denied effective assistance of counsel by his attorney’s refusal to allow him to testify as he proposed.

i. A defense counsel’s duty is limited to legitimate, lawful conduct compatible w/ the very nature of a trial as a search for truth.

ii. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.

2. No constitutional right to testify falsely (commit perjury)i. The 6th isn’t violated when a defense attorney threatens to reveal her client’s intention

to commit perjury (at least when it is clear what the client proposes to do).

Right to assistance of counsel, continuedj. Conflicts of Interest

i. Cuyler: 3 clients: two that paid = acquitted, one who didn’t pay = guilty where counsel offered no evidence on his behalf

1. Joint representation (i.e., a single attorney representing co-Ds) isn’t per se invalid 2. However, counsel has an ethical obligation to inform clients of conflicts of interest

ii. Mickens: Lawyer representing D at trial was D’s victim’s lawyer at time of the murder 1. D must show that the conflict of interest adversely affected counsel's performance and a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different

iii. Wheat: 1. While D has the right to counsel of her own choosing, a D has no right to be jointly

represented w/ her co-Ds2. Trial courts have the authority to limit joint representation to avoid potential and actual

conflicts of interest. 3. Even when all Ds waive any claim to conflicts of interest, the trial court can still prohibit the

joint representation

k. The Role of Appointed Counsel i. Anders

1. Counsel must request to w/draw from a frivolous case w/ a letter attached to a brief referring to anything in the record that might arguably support an appeal

i. A copy of the letter/brief must be given to the indigent D and she must be given time to raise any points she chooses

2. The court will decide if the claim is frivolous ii. Smith

a. Who makes the final decision on strategy: i. Trial: D

ii. Appeal: Counsel

FOURTH AMENDMENT: ARREST, SEARCH, & SEIZURE The 4th Amendment

a. The right of the ppl to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

b. And no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

V. Search and Seizurea. SEARCHES Conducted Pursuant to a Warrant

i. To be reasonable under the 4th, most searches must be pursuant to a warrant. 1. The warrant requirement serves as a check against unfettered police discretion by requiring

police to apply to a neutral magistrate for permission to conduct a search2. A search conducted w/o a warrant is invalid (and evidence discovered during the search

must be excluded) ii. Warrant must be based on PROBABLE CAUSE

1. In order to show probable cause, i. Police must state sufficient facts that they have actual knowledge of or

information from a reliable source, andii. Police must have reasonable grounds to believe that –

1. Items sought are connected w/ criminal activity, and 2. The items will be found in the place to be searched

4th Amendment: Search and Seizure, continued2. Use of information obtained from informers in the showing of probable cause:

i. Spinelli test – Application for a warrant must 1. Set forth underlying circumstances necessary to enable the magistrate to

independently judge the validity of the informer’s conclusions, AND2. Support the credibility of informer or the reliability of her information

a. Credibility: She has given good info in the past, b. Reliability: She has given info that led to other convictions, has first-hand knowledge, provided adequate depth of detail

ii. Gates test – Totality of the circumstances1. If affidavit of probable cause is based on info obtained from informers, its

sufficiency is determined by the totality of the circumstancesa. The affidavit need not contain any particular fact about the informer, as long as it includes enough information to allow the magistrate to make a common sense evaluation of probable cause (i.e., that the info is trustworthy)

iii. Informer’s privilege: 1. Police aren’t required to disclose an informant’s identity if the trial judge is

convinced by evidence submitted in open court and subject to c-e that the officers did rely in good faith upon credible information supplied by a reliable informant

3. Other sources of probable cause i. Pringle

1. A car passenger, unlike a bar patron, will be often engaged in a common enterprise w/ the driver and have the same interest in concealing the fruits or evidence of their wrongdoing

2. Thus, in a car, a person’s mere propinquity to others independently suspected of criminal activity gives rise to probable cause to search that person and the officers had probable cause to believe that D has committed the crime of possession of a controlled substance

ii. Info from an alleged victim or witness to a crimeiii. Direct observations by police: The probabilities must be measured by the standards of

the reasonable cautious and prudent police officer as he sees them and not those of the casual passerby

iv. Information and orders from official channels iii. Requirements of a SEARCH WARRANT

a. To be valid, a warrant must 1. Be issued by a neutral and detached magistrate, AND

i. Municipal court clerks can issue arrest warrants for municipal law violations ii. Where the issuing official is unsalaried and only gets paid if the warrant is issued, the

warrant isn’t issued by a detached and neutral magistrate iii. Where a judge issues a search warrant based on an affidavit which he doesn’t read,

makes no determination of probable cause but merely serve a rubber stamp for police, such action is improper, even when the affidavit shows probable cause

2. Be based on probable cause established from facts submitted to the magistrate by a govt. agent upon oath or affirmation, AND

3. Particularly describe the place to be searched and the items to be seizedi. This requirement is intended to prevent general searches, the seizure of objects on the

mistaken assumption that they fall w/in the magistrate’s authorization, and the issuance of warrants on loose, vague or doubtful bases of fact

4th Amendment: Search and Seizure, continuediv. Execution of the warrant

1. Time of executioni. Warrant must be executed promptly or w/in statutory period (usually 10 days)

ii. Warrants should be executed during the day – need permission to search at night2. Notice of search:

i. Officers must leave notice of the search unless they have made a showing of reasonable necessity for the delay

ii. Officers should be required to give the appropriate person notice of the search w/in a reasonable time of the covert entry

iii. Exception Sneak and peak search warrant – authorize police to enter premises, look around, and depart w/o leaving any notice of the search

3. Notice that property has been taken: i. When property is seized bc of a warrant, there is also a due process requirement that

police take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return – this is met when no one is present by leaving a notice of service w/ a list of the property seized attached

4. The media isn’t allowed to be present – only those who are in aid of the execution of the warrant are (to help identify stolen property, etc.)

v. Gaining entry1. The police are require to knock and announce their presence when executing a search

warrant vi. Search of persons on the premises to be searched

a. Ybarra: A search warrant didn’t permit body searches of all the bar’s patrons and the police couldn’t pat down the patrons for weapons absent individualized suspicion

2. A person’s mere nearness to others independently suspected of criminal activity doesn’t give rise to probable cause to search that person

3. A search or seizure of a person must be supported by probable cause particularized w/ respect to that person

vii. Detention of persons on the premises to be searched 1. Summers: Some seizures constitute such limited intrusions on the personal security of those

detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity

viii. Intensity and duration of search 1. The executing officers CAN’T look everywhere w/in the described premises, they may

ONLY look where the items described in the warrant might be concealed ix. Seizure of items not named in the search warrant

1. If the scope of the search exceeds that permitted by the terms of the warrant, the subsequent seizure is unconstitutional

2. Ruscoe: Where in executing a warrant for candlesticks, napkin holders, and a mug police discovered no serial numbers on electronics they were moving searching for the objects in the warrant, this is a lawful discovery

3. Plain view doctrine: Police can seize contraband or evidence of a crime in plain view if lawfully on premises

4th Amendment: Search and Seizure, continuedb. Protected Areas and Interests

i. The 4th Amendment protects people, not placesii. What a person knowingly exposes to the public, even in her own home or office, isn’t subject to

4th Amendment protection 1. BUT, what a person seeks to preserve as private, even in a public area, may be

constitutionally protected iii. Garbage

1. An expectation of privacy doesn’t give rise to 4th protection unless that expectation is objectively reasonable.

i. Trash waiting for pickup on a curb has been abandoned – so, no reasonable expectation of privacy

iv. Open fields 1. Areas outside the ‘curtilage’ (dwelling house and outbuildings) are subject to police entry

and search – these areas are held out to the public and are unprotected by the 4th 2. Even steps taken to est. an expectation of privacy in an open field offer no protection (‘no

trespassing’ signs and fences)v. Yards

1. No reasonable expectation of privacy in yard from air surveillance2. No reasonable expectation of privacy in partially covered greenhouse in yard observable

from a helicopter in airspace vi. Businesses & Commercial premises

1. Protected by the 4th 2. When an individual is in a closed stall (private area) in a public place, observation of

conduct is a search. 3. Aerial photography of a chemical company’s industrial complex isn’t a search under the 4th

vii. Detention Facilities 1. A prison cell or any other detention facility isn’t protected by the 4th

viii. Vehicles 1. If car is parked in a public parking lot, police search of those areas in public don’t

violate a reasonable expectation of privacy i. Taking a paint chip from a car is not a search.

ii. Viewing the car’s VIN is not a search. 2. BUT, a car’s interior is subject to 4th Amendment protection

ix. Personal effects 1. Personal luggage is protected by the 4th

i. Ex: A bus passenger doesn’t expect his bag to be felt in an exploratory manner, so a govt. agent’s physical manipulation of a bag is a search under the 4th.

2. BUT, a canine sniff of a bag located in a public place is NOT a search under the 4th x. Police Senses

1. It isn’t a search for an officer, lawfully present at a certain place, to detect something by one of her natural senses

2. Police senses enhanced by technology: i. When it IS a search

1. Obtaining info by sense-enhancing technology regarding the interior of the home that couldn’t otherwise have been obtained w/o physical intrusion IS a search. a. Thus, the use of Thermovision to search one’s home from the outside w/o a warrant violated the 4th.

ii. When it is NOT a search 1. The use of a beeper to track store bought materials to a drug lab is NOT a search 2. Taking samples of the air to track air pollution is NOT a search

c. What ITEMS are available for search and seizure? i. Andresen: The introduction of petitioner's business records into evidence was not a violation of

his 5th Amendment self-incrimination privilege.1. Since petitioner was not asked to say or to do anything, the introduction into evidence

of petitioner's business records seized during an otherwise lawful search did not implicate the privilege against self-incrimination.

2. Things not subject to seizure : personal diaries, letters, or other writings or recordings made for private communication to a family or close relation

ii. Zurcher: Newspaper w/ photos of rioters claimed that search warrant may not be issued to seize property belonging to innocent 3rd party

1. A valid warrant may be issued to search for any property for which there is probable cause to believe that such evidence is needed for conviction

2. There must be probable cause – this affords adequate protection to 3rd party against govt. invasion

d. EXCEPTIONS TO SEARCH WARRANT: Warrantless Searches and Seizures of Vehicles and Containersi. Vehicle Exception to the Search Warrant Requirement :

1. Automobile exception: An entire car may be searched WITHOUT a warrant if probable cause exists

i. The ready mobility of the car justifies a lesser degree of protection of those interests and there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling

ii. Motor home falls w/in the exception bc it was readily mobile and was situated in a way that indicated it was being used as a vehicle

ii. Searching particular cars for particular things : 1. Even if no warrant need first be obtained, probable cause is required to search a particular

car for particular articlesiii. Searches of containers found in cars:

a. There is no need for separate treatment for an automobile search that extended only to a container (ex: a car with a bag with drugs in it) within the vehicle.

i. The police can search containers in an automobile without a warrant if their search was supported by probable cause.

ii. The 4th doesn’t require the police to obtain a warrant to open a container in a movable vehicle simply because they lacked probable cause to search the entire car.

iv. Automobile search incident to arrest of driver: 1. If there is a custodial arrest of a driver of a car, the officer can search the passenger

compartment of a car incident to that arrest 2. Recently occupied vehicle:

i. Thornton: A police officer determined that D’s car had improper license tags, but D parked and exited the vehicle before the officer had an opportunity to stop the vehicle

1. Officer was allowed to search the interior of D car incident to the lawful custodial arrest of D’s as a recent occupant of the vehicle.

3. Thus, if can search a car after arrest ppl who were just driving it, then can also search car if arrest ppl recently occupying it

v. Inventory searches after vehicle impounded: 1. An inventory search may be reasonable under the 4th even though it isn’t conducted

pursuant to warrant based upon probable cause2. Reasonable police regulations relating to inventory procedures administered in good faith

satisfied the 4th Amendment.3. Rationale: The police are potentially responsible for the property taken into their custody4. There must be no showing that the police chose to impound defendant's van in order to

investigate suspected criminal activity

e. Administrative Inspections & Regulatory Searches i. Generally

1. Warrant is required in most cases i. Ex: housing inspections, code inspections

2. Health, safety, fire, etc. inspectors cannot insist on entering private premises without a warrant

i. Probable cause is NOT required to obtain a warrantii. Instead, inspector must show that reasonable legislative or administrative standards

for conducting an area inspection are satisfied w/ respect to a particular dwelling 1. The seizure or search must be conducted pursuant to some neutral criteria which

guard against arbitrary selection of those subjected to such procedures 2. Inspections need to be conducted in a routine, rolling way

3. Exceptions to the warrant requirement: When warrant is NOT needed i. Inspection as a condition of receiving certain govt. benefits

ii. Inspection of heavily regulated industries1. Licensed liquor sellers, licensed gun dealers, mines, junk-yards

f. Border Patrol: NO warrant requiredi. State has a right to protect border and control who comes into the country – both citizens and non-

citizens have no 4th Amendment rights at the border ii. Border patrol can’t conduct roving searches, but can set up checkpoints inside US border bc

intrusion is minimal and the need to stop illegal immigration is greatg. Vehicle Checkpoints: NO warrant required

i. In a series of cases dealing w/ the stopping of cars away from the border to see if they were occupied by illegal aliens, the SC held that while roving patrols could stop and search vehicles for illegal aliens only on probable cause, only reasonable suspicion was needed for patrols to engage in vehicle checkpoints where motorists are stopped and briefly questioned

a. Checkpoints are only minimally interfere w/ 4th rights bc of the limited nature of the seizure and reduced expectation of privacy in cars

b. What constitutes a brief seizure for a limited purpose? i. License/registration check – must have reasonable suspicion

ii. DUI checkpointiii. Checkpoint to obtain information from public iv. Can’t be for general law enforcement purposes – must be narrowly tailored v. No individualized suspicion required

vi. Must stop all cars or every tenth (or something similar)1. Key is that uniformity eliminates officer discretion to single out individuals for

scrutiny c. Scope of stop:

i. Seizure must be very brief and limited in scopeii. No search of car or person is permitted

iii. Non-search investigative techniques permitted (drug sniffing dogs allowed)h. Search of Students

i. TLO: Balance b/t school child’s legitimate expectations of privacy and the school’s equally legitimate needs to maintain an environment in which learning can take place – held that school officials need NOT obtain a warrant before searching a student who is under their authority

i. Supervision of parolees and probationersi. Griffin: NO warrant is required for search of probationer’s home bc it won’t only make it hard

for probation officials to respond quickly to evidence of misconduct, but also would interfere w/ the probation officer’s judgment as to how close a supervision the probationer requires

j. Drug testing of employees and students: Full search WITHOUT a warrant is permitted so long as search is reasonablei. Von Raab: The suspicion-less drug testing of employees who apply for promotion to positions

directly involving the interdiction of illegal drugs or to positions which require the incumbent to carry a firearm is allowed

a. Skinner: Upheld blood and urine testing of RR employees following major train accidents and the breath and urine testing of RR employees who violate certain safety rules

ii. Veronica School District: SC upheld the district’s policy where each week 10% of the students then participating in school athletics were randomly selected for urinalysis (NO warrant needed here)

iii. Earls: Included non-athletesa. A student’s privacy interest is limited in a public school environment where the state is

responsible for maintaining discipline, health, and safety. b. Given the minimally intrusive nature of the sample collection and the limited uses to which the

test results are put, the invasion of students’ privacy isn’t significant c. Plus, there is an important govt. concern in preventing drug use by schoolchildren. Testing

students who participate in extracurricular activities is a reasonably effective means of addressing the school’s legitimate concerns in preventing, deterring, and detecting drug use

iv. Special needs v. ordinary law enforcement 1. City operated car checkpoints, complete w/ drug dogs undertaken to interdict unlawful

drugs, VIOLATE the 4th amendment 2. A hospital identifying and testing pregnant patients suspected of drug use and turning

the results over to law enforcement w/o knowledge or consent of patients VIOLATES the 4th amendment

k. Consent to Searchesi. Generally

1. Consent searches are frequently relied upon by the police bc they involve no time-consuming paper work and offer an opportunity to search even when probable cause is lacking

i. Thus, the constitutional protection against unreasonable search and seizure widens or narrows, depending on the difficulty or ease w/ which the prosecution can establish that D or some other authorized person has consented to what would otherwise be an unconstitutional invasion of his privacy

ii. Nature of Consent: 1. The 4th and 14th Amendments require that a consent not be coerced, by explicit or

implicit means, by implied threat or covert force. 2. There is nothing constitutionally suspect in a person voluntarily allowing a search 3. When the subject of a search isn’t in custody and the state attempts to justify a search on

the basis of his consent, the 4th and 14th Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied

iii. Mental or emotional state of consenter: 1. No matter how genuine the belief of the officers is that the consenter is apparently of sound

mind and deliberately acting, the search depending upon his consent fails if it is judicially determined that he lacked mental capacity – the key to validity – consent – is lacking for want of mental capacity, no matter how much concealed.

iv. Claim or show of authority: 1. A search can’t be justified on the basis of consent when it has been given only after the

official conducting the search asserted that he possesses a warrant bc the official announces in effect the occupant has no right to resist the search – while this is colorably lawful coercion, where there is coercion, there can’t be consent

v. Fruit of the poisonous tree: Prior illegal police action 1. A consent may be held ineffective bc obtained in exploration of a prior illegal arrest

Consent to searches, continuedvi. Failure to give 4 th Amendment warnings:

1. The failure to give D 4th/Miranda warnings isn’t given controlling significance where the D had been arrested and was in custody but his consent was given while on a public street not in the confines of the police station

vii. Failure to give 5 th Amendment warnings: 1. Bc requesting consent to search isn’t likely to elicit an incriminating statement, such

questioning isn’t interrogation and 5th/Miranda warnings aren’t required viii. Consent by deception : Lewis

1. Court upheld practice of police obtaining evidence of criminal activity by acting in an undercover capacity and obtaining a consent which D wouldn’t have given had he known the officer’s true identity

2. Another situation is where the officer’s true identity is known but he misleads the suspect as to his intentions

ix. Third party consent a. The 4th generally prohibits the warrantless entry of a person’s home, whether to make an arrest

or to search for specific objects b. The 4th Amendment prohibition of warrantless entry doesn’t apply however to situations

in which voluntary consent has been obtained, either from the individual whose property is searched OR from a 3rd party who possesses common authority over the premises

c. Common authority rests on mutual use of the property by ppl generally having joint access or control for most purposes – the burden of est. this rests on the state

2. Husband-wife: i. Duran: D’s wife could consent to a search of a building on their farm bc she could’ve

entered the building at any time even though she never did and didn’t have any of her stuff there

ii. In the context of more intimate relationships (as compared to other co-occupants), the burden upon the govt. should be lighter

3. Parent-child: i. If the child is living at the home of his parents, the head of the household may give

consent to a search of the child’s living quarters ii. A child may not give consent to a full search of the parent’ house

1. BUT, mere entry of police on the premises w/ the consent of the child is NOT improper

4. Landlord-tenant, co-tenants, hotel-guesti. A landlord may NOT consent to a search of his T’s premises, even though the LL

may have some right of entry for purposes of inspecting or cleaning the premises ii. Hotel employees may not consent to the search of a particular room when it has

been rented by a guest iii. Where two or more ppl occupy a dwelling jointly, a joint tenant can consent to police

entry and search the entire house or apt. even though they occupy separate bedrooms

5. Employer-employee: i. As to consent by D’s employer, consent is invalid as to a search of D’s desk if D has

a high expectation of privacy (locked office door and desk contains confidential records)

ii. But, a factory owner can consent to search items on top of a workbench bc its not an area assigned to D or used exclusively by him

iii. Whether an employee can give a valid consent to a search of his employer’s premises depends upon the scope of his authority

iv. An average employee can’t give consent, but a manager or a person of considerable authority who is left in complete charge can waive his employer’s rights

VI. Arresta. Generally

i. Governmental detentions of the persons, including arrests, certainly constitute seizures of the person

ii. Whether a seizure of the person is reasonable depends on: 1. The scope of the seizure (ex: is it an arrest or merely an investigatory stop?) and 2. The strength of the suspicion prompting the seizure (ex: an arrest requires probable cause

while an investigatory detention can be based on reasonable suspicion). iii. An arrest occurs when the police take a person into custody against her will for purposes of

criminal prosecutions or interrogation iv. Probable cause requirement:

1. An arrest must be based on probable cause2. Probable cause to arrest is present when:

i. At the time of the arrest, the officer has w/in her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime

v. Warrant generally not required1. Watson: In contrast to the rule for searches, police generally don’t need to obtain a

warrant before arresting a person in a public place, even if they have time to get a warrant

i. Felony: 1. A police officer may arrest a person w/o a warrant when she has reasonable

grounds to believe that a felony has been committed and that the person before her committed it

ii. Misdemeanor: 1. An officer may make a warrantless arrest for a misdemeanor committed in her

presence – a crime is committed in the officer’s presence if she is aware of it through any of her senses

2. Exception – Home Arrests Require Warranti. Payton: The police must have an arrest warrant to effect a non-emergency arrest of

an individual in her own homeii. Welsh: All warrantless searches of home are unreasonable – the burden is on the govt.

to show sufficient emergency circumstances to overcome this presumption 3. Effect of Invalid Arrest

i. An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution1. Thus, if the police improperly arrest a person (ex: at his home w/o a warrant), they

may detain him if they have probable cause to do so, and the invalid arrest isn’t a defense to the offense charged

ii. But, evidence that is a fruit of the unlawful arrest may not be used against the D at trial bc of the exclusionary rule

b. More on Warrantless Arrests and Searches of the Personi. Deadly force : Garner

1. When police shot victim as he ran away from the scene, the use of deadly force to apprehend a suspect is unreasonable unless there is probable cause to believe that the suspect poses a significant threat of death or serious injury to the officers or others

ii. Probable cause : 1. While a police officer may arrest based on her immediate assessment of probable cause,

once D is in custody, however, the 4th requires a fair and reliable determination of probable cause bc it’s an extended restraint on liberty

iii. Promptness requirement: 1. A prompt determination must happen w/in 48 hours of the arrest

iv. Search incident to arrest: 1. A search incident to a lawful arrest is a traditional exception to the warrant

requirement of the 4th amendment i. The arrestee may be searched only pursuant to a lawful arrest

ii. A search may be made of the area w/in the control of the arrestee v. Pretextual arrests:

1. May the police seize upon a traffic violation as a pretext (i.e., police aren’t motivated by the minor traffic violations but instead by their hunch of drug trafficking) for stopping a motorist?

i. If the police HAVE PROBABLE CAUSE to believe that a traffic or other law has been broken, they may stop the perpetrator even if their motive in doing so is to seek evidence of some other crime for which they don’t have probable cause or even reasonable suspicion.

vi. Police station searches pursuant to arrest 1. Full searches of an arrested person are typically made when that person has been

delivered to the place of her forthcoming detention 2. Personal effects: Edwards

i. Once the D is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized w/o a warrant even though a substantial period of time has elapsed b/t the arrest and subsequent administrative processing on the one hand and the taking of the property for use as evidence on the other

3. Strip Searches: McCauleyi. A police station search of the vagina of an incarcerated woman which resulted in the

discovery of a packet of narcotics violated due process bc is wasn’t conducted by skilled medical technician

ii. Can’t strip search arrestees coming into jail – level of intrusion is too great

c. Warrantless Entries and Searches of Premises Pursuant to an Arrest Warrant i. The police are prohibited from making a warrantless and nonconsensual entry into a

suspect's home in order to make a routine felony arresta. To be arrested in the home involved not only the invasion attendant to all arrests, but also an

invasion of the sanctity of the home, which was too substantial, absent exigent circumstances, even when it was accomplished under statutory authority and when probable cause was present.

ii. Watson: Permitted police to attempt a warrantless arrest of the D when she was found standing in the doorway of her residence

1. Vale: BUT when police arrest suspect on front steps of house THEN search inside home, the search is unreasonable bc if a search of a house pursuant to an arrest, the arrest must be made inside the home (w/ a warrant)

iii. Chimel1. When the police have an arrest warrant yet search the house of the person they arrest,

the search is invalid if it is unnecessarily widespread. 2. The police have the right to search the area w/in D’s immediate control, but the portion of the

premises outside that control can’t be warrantlessly searched incident to arrest. iv. When can officers look into other areas of the D’s home after the D has been placed under arrest

there? 1. Lucas: When it is necessary for the arrestee to put on street clothes, police can look into

dresser drawer D is about to open and gun found therein admissible 2. Buie: When officers are acting for their own protection, a warrant isn’t required for a

protective sweep if a reasonably prudent officer believes that the area to be swept harbors an individual posing a danger to those on the arrest scene

3. Block: When the officers are seeking other offenders

v. Warrantless seizures while in premises to arrest 1. Plain view doctrine

i. If an officer is lawfully present w/in premises to make an arrest, he may observe certain items NOT w/in the immediate control of the arrestee which will be subject to warrantless seizure under the so-called plain view doctrine.

2. Coolidge: The plain view doctrine may NOT be used to extend a general exploratory search from one object to another until something incriminating at last emerges (moving of the equipment was an unreasonable search)

d. Emergency Circumstancesi. McArthur: When one officer leaves to obtain a search warrant while another officer remains

on the porch w/ D who was told he couldn’t reenter unless he was accompanied by the officer, the restriction is reasonable and lawful

ii. Rubin: When govt. agents have probable cause to believe contraband is present, and in addition, based on the surround circumstances or the info at hand, they reasonably conclude that the if evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified under these “emergency circumstances”

iii. Hayden: 4th doesn’t require police to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others (upholding a warrantless entry to arrest in certain circumstances)

e. Stop and Friski. Investigatory Detentions: Terry

1. Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause for arrest

i. NO warrant is required2. TEST: To make such a STOP (a brief investigatory detention),

i. Police must have a REASONABLE SUSPICION ii. Supported by articulable facts of criminal activity or involvement in a completed

crime3. TEST: To FRISK (a limited body search) a person,

i. The police must have reasonable suspicion to believe that the detainee is armed and dangerous to ensure the detainee has no weapons

1. Can only pat down the outer clothing – only can go into a pocket or other concealed area if feel an object that can reasonably be considered a weapon

ii. Consensual encounter – no reasonable suspicion required1. A seizure doesn’t occur bc a police officer approaches an individual and asks a few

questions – so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

2. The encounter doesn’t trigger 4th amendment scrutiny unless it loses its consensual natureiii. Suspect in a high crime area

1. Reasonable suspicion justifying a stop is present when: i. A suspect who is standing on a corner in a high crime area

ii. Flees after noticing the presence of the police1. Neither factor standing ALONE is enough to justify a stop, but TOGETHER they are

sufficiently suspicious2. When an officer approaches a person, they don’t have to stop, but if the person is

detained, then they can’t walk away2. An individual’s presence in an area of expected criminal activity isn’t enough to support a

reasonable suspicion that the person is committing a crime, but officers aren’t required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.

Stop and Frisk, continuediv. Informant’s tips : JL

1. When police received a description of an anonymous person at a bus stop who was carrying a gun and after police found and searched him, and in fact seizing an illegal gun, there wasn’t sufficient indicia of reliability in the tip to provide reasonable suspicion.

2. Since any passerby could observe the suspect’s presence, the tip didn’t provide predictive info and left police w/ no way to test the informant’s knowledge and credibility

v. Permissible extent of Stop and Frisk 1. Limits that must be observed by police to prevent temporary stop on street for purpose

of investigation from becoming illegal: i. 25 minutes too long where suspect cooperated fully and no greater suspicion

developed, ii. 1 hour NOT too long where suspects gave implausible responses to questions bc it

added to initial suspicion 2. Hibel: State law requiring person to identify themselves upheld 3. Werking: Return of D’s papers manifested to D that he was free to leave the scene so

that when he instead remained and responded to the questions he chose to engage in a consensual encounter

4. What police may legitimately do during a traffic stop: i. Holt: Ensuring the safety of the police and bystanders is a more compelling interest

than acquiring info of criminality and this justifies a variety of minimal intrusions in service of that particular interest, including straightforwardly asking if there is a weapon in driver’s car when they are stopped.

ii. Childs: Inquiries falling outside the scope of the detention don’t constitute unlawful seizure bc the asking of questions itself isn’t an independent seizure and the questioning didn’t make the pre-existing seizure unreasonable

vi. Temporary Seizure of Effects 1. VanLeeuwen: Although detention of mail could at some point become an unreasonable

seizure of papers or effects w/in the meaning of the 4th, Terry allows the detention of mail for over a day awaiting a warrant while an investigation is made

vii. Brief Detention for Fingerprinting 1. On the scene fingerprinting is permissible if there is reasonable suspicion that the

suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection w/ that crime and if the procedure is carried out w/ dispatch

2. Can hold a person on probable cause, NOT on suspicionviii. Subpoena to Appear Before Grand Jury

1. The 4th wasn’t violated by subpoenaing witnesses to appear before a grand jury to give voice exemplars – no preliminary showing of probable cause or reasonableness is required in such a case

VII. Police Encouragement and the Defense of Entrapment a. Meaning of Entrapment

i. Undercover agents don’t generally wait passively for the suspect who has taken them into his confidence to make incriminating statements

ii. Usually, the undercover agent plays to at least a small degree the role of ‘agent provocateur’ inducing the suspect to make statements or commit offenses which, were it not for the agent’s presence, wouldn’t occur.

iii. While the solicitation of mere statements is rarely objectionable, the agent’s inducement of the suspect to perform a criminal act may sometimes be sufficiently coercive that the suspect will be able to assert the defense that he was entrapped into committing the crime

b. Definition of Encouragementi. The police or their agent encourage the commission of a crime by:

1. Acting as a willing participant in the commission of a crime, 2. Communicating feigned willingness to the suspect, and 3. Thereby having some influence on the suspect’s commission of the crime

c. Test for Entrapment: Russelli. Undercover agent supplied rare ingredient for the manufacture of drugs to D, D manufactured the

drugs and gave half to the undercover agent, D arrested and convicted on drug offense ii. The principle element in the defense of entrapment is the D’s predisposition to commit the

crime 1. The defense can never be based on govt. misconduct where the predisposition of D to

commit the crime is established2. This is a subjective test:

i. Was D the kind of person who would have committed the crime whether the govt. was involved or not?

iii. Barraza: States use the following objective test more often – 1. Was the police conduct likely to induce a normally law-abiding person to commit the

offense? 2. Would a person of reasonable firmness be able to withstand temptation?

d. Other Issuesi. Contingent fee arrangements

1. Informants hired on the basis to produce convictions may lead to entrapment suspicions ii. Inconsistent defenses

1. Even if D denies one or more elements of the crime, the entrapment defense remains available (traditionally, if D pleaded innocent, the defense of entrapment wasn’t allowed)

2. Even if D denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

iii. Middlemen and ultimate targets 1. When govt. agents have persuaded a middleman to induce a particular target selected

by the agents to commit a crime, the courts generally extend the entrapment defense to the ultimate targets

The Defense of Entrapment, continuede. Excessive Government Involvement

i. Hampton1. D sold heroin he bought from a govt. agent and was convicted of distribution. 2. Involvement by govt. beyond the proper scope of their duty doesn’t constitute a defense3. The only defense available is entrapment: D must show that the idea to commit the

crime must have been the result of govt. action and NOT the predisposition of D4. Remedy available for excesses of govt. agents is either through administrative action or

charge them w/ a crimeii. Kelly

1. Govt. agents initiated scheme to discover bribery among members of Congress by offering them $ in exchange for private immigration legislation and D took bribe

2. Due Process Defense: Did the govt. agent’s conduct reach a demonstrable level of outrageousness while keeping in mind the difficulties inherent in detecting corrupt public officials?

3. A successful due process defense must be predicated on intolerable govt. conduct which goes beyond that necessary to sustain an entrapment defense

4. Considering the genuine need to detect corrupt public officials, as well as the difficulties inherent in doing so, the FBI’s conduct in furtherance of its operations, insofar as it involved D, didn’t reach intolerable level

iii. Jacobson1. Govt. pursued D for 2 years w/ numerous letters and overtures to appeal to D’s view of the 1st

Amendment and sold him child porn after he quit viewing it when it was outlawed. D then convicted on child porn charges.

2. SC found that govt. overstepped the line b/t setting a trap for the criminal and enticing the innocent to commit a crime

3. In its zeal to enforce the law, the govt. may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the govt. may prosecute

i. Since only evidence of predisposition was an act that was lawful at the time it was done, couldn’t prove predisposition independent of govt. action

4. Law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute

VIII. Police Interrogation and Police Practicesa. History

i. The 6th Amendment right to counsel1. Once a person is formally charged by indictment or info, his constitutional right to

counsel has begun – at least his right to the assistance of counsel he has retained himselfii. Massiah

1. D was arrested and indicted, and after he retained a lawyer, police sent secret informant to gain evidence against D and tape their conversation – outside the presence of D’s lawyer.

2. Such action denied D basic protection of the right to counsel – police or prosecutor can’t interview suspect after he has retained counsel w/o his counsel being present

iii. Escobedo 1. D was being interrogated while in police custody and asked to speak w/ his lawyer, but his

request was denied. 2. Any statement elicited under such circumstances can’t be used against D in criminal trial

i. D was denied assistance of counsel bc he hadn’t been warned of right to remain silent and he requested and was denied an opportunity to consult w/ his lawyer

b. Mirandai. The case:

1. The Miranda warnings and a valid waiver of one’s rights are prerequisites to the admissibility of any statement made by the accused during custodial interrogation

2. The person in custody must, PRIOR to interrogation, be clearly informed that they: i. Have the right to remain silent,

ii. Anything they say can be used against them in court, iii. Has the right to the presence of an attorney, and iv. If they can’t afford an attorney, one will be appointed for him if he so desires

3. Custodial interrogation: i. Any questioning after a person has been taken into custody or otherwise deprived of

his freedom of action in a significant way4. Police are allowed to ask questions at the scene of the crime in order to determine whether to

arrest or not before giving any warning i. Berkemer: Since traffic stops are presumptively temporary and brief (not custodial

interrogation), Miranda warnings normally need not be given during a traffic stopii. Use of Confession for Impeachment

1. A confession obtained in violation of the D’s Miranda rights, but otherwise voluntary, may be used to impeach the D’s testimony if she takes the stand at trial, even though such a confession is inadmissible in the state’s case in chief as evidence of guilt

2. However, a truly involuntary confession is inadmissible for any purpose3. Silence

i. The prosecutor may not use D’s silence after receiving Miranda warnings to impeach

iii. Stationhouse lawyers? 1. Duckworth: Police don’t have stationhouse lawyers and Miranda doesn’t require that

attorneys be produce-able on call – but, police are required not to interrogate iv. What constitutes interrogation?

1. Invoking a response: i. Innis

1. D was not interrogated within the meaning of Miranda when the police officers voiced safety concerns about children finding the weapon from the crime and D interrupted them to say he would show them where the gun was located.

2. The term "interrogation" under Miranda referred not only to express questioning, but also to any words or actions on the part of the police that the police should know were reasonably likely to elicit an incriminating response from a suspect.

ii. Drury1. Officer should know, after telling D that he was being brought in for questioning,

that putting the evidence before him and telling him that the items were going to be fingerprinted was reasonably likely to evoke an incriminating response from him.

iii. Mauro1. It isn’t likely to evoke a response when police to accede to the request of D’s wife,

also a suspect in the murder of their son, to speak w/ D in the presence of a police officer who placed a tape recorder in plain sight on a desk

2. The jail plant situation, surreptitious interrogation: 1. A secret govt. agent posing as a fellow prisoner placed in the same cell w/ an

incarcerated suspect and induced him to discuss the crime for which he has been arrested does NOT constitute custodial interrogation.

2. Miranda warnings are NOT required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.

v. Miranda is a constitutionally protected right1. Dickerson: Invalidated a statute that purportedly eliminated Miranda’s requirements that

persons in custody and being interrogated be informed of the right to remain silent and the right to counsel

i. Miranda set forth concrete constitutional guidelines and Congress can’t overrule constitutional rights

c. Physical or demeanor evidence v. evidence of silencei. Once the govt. places an individual in custody, that individual has a right to remain silent in

the face of govt. questioning, regardless of whether the Miranda warnings are given. 1. The govt. may not burden that right by commenting on the D’s post arrest silence at trial

d. The Public Safety Exception: Quarlesi. If police interrogation is reasonably prompted by concern for public safety, responses to the

questions may be used in court, even though the accused is in custody and the Miranda warnings weren’t given

ii. Scope of this exception is unclear, and may be limited to the facts of the case that gave rise to the rule:

1. Suspect was handcuffed and was contemporaneously asked where he had hidden the gun – the police were found to be reasonably concerned that the gun might be found and cause injury to an innocent person

e. Waiveri. A suspect may waive his Miranda rights

ii. To be valid, the govt. must show by a preponderance of the evidence that the waiver was knowing, voluntary, and intelligent.

1. Implied waiver – silencei. Butler: Waiver won’t be presumed from the mere silence of the accused after the

warnings are given or from the fact that a confession was eventually obtained

f. Right to Terminate Interrogationi. The accused may terminate police interrogation by invoking either the right to remain silent

or the right to counselii. What constitutes D initiating further questioning with authorities?

a. Conversations about the incidentals of the custodial relationship (requests for drink or to use phone) aren’t sufficient to ‘initiate’ a conversation

iii. When D Invokes the Right to Remain Silent 1. Mosley: Police may reinitiate questioning after D has invoked the right to remain silent, as

long as they scrupulously honor the D’s request. i. This means, at the very least, that police may not badger the D into talking and must

wait a significant time before reinitiating questioningii. Minimal requirements for the resumption of questioning one a suspect asserts his right

to remain silent: 1. Immediately ceasing the interrogation, 2. Suspending questioning entirely for a significant period, and 3. Giving a fresh set of Miranda warnings at the outset of the second interrogation

a. Then, police may interrogate about the crime questioned about before, or a totally unrelated crime

iv. When D Invokes the Right to Counsel 1. Edwards: At any time prior to or during interrogation, the accused may also invoke a

Miranda right to counsel. i. If the accused invokes this right, all questioning must cease until the accused is

provided w/ an attorney or initiates further questioning himself2. Roberson: Police may not resume questioning about any crime

i. Once the accused invokes his right to counsel, all questioning must cease, the police can’t even question the accused about a totally unrelated crime, as they can where the accused merely invokes the right to remain silent

3. Request for counsel must be unambiguous and specifici. A request for counsel can only be invoked by an unambiguous request for counsel

ii. Fare: 1. Even though juvenile requested to see his probation officer and parents, his

statements were admissible bc his request wasn’t the equivalent of asking for a lawyer

2. The admissibility of the statements on the basis of waiver turned on the totality of the circumstances surrounding the interrogation (e.g., evaluation of the juvenile’s age, experience, background, and intelligence)

4. Counsel must be present at interrogation i. Minnick: Mere consultation w/ counsel prior to questioning doesn’t satisfy the

right to counsel – the police can’t resume question the accused in the absence of counsel

5. Miranda – Edwards – Roberson rule is different than 6 th Amendment right to counsel i. 6th right to counsel provides less protection because it is offense specific

1. Cobb: Thus, if a D makes a 6th request for counsel for one charge, he must make another request if he is subsequently charged w/ a separate, unrelated crime if he desires counsel for the second chargea. Blockberger: The test for determining whether offenses are different under the 6th – two crimes are considered different offenses if each requires proof of an additional element that the other crime doesn’t require

ii. McNeil: Miranda protects D from questioning about any crime1. Miranda requires some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police

g. Third party invocation of Miranda rightsi. Police deception of D v. D’s lawyer

1. The police can NOT lie to a suspect2. If the Miranda warnings are given, a voluntary confession will be admissible even if the

police lie to D’s lawyer about their intent to question the D or fail to inform D that his lawyer is attempting to see him, as long as adversary judicial proceedings haven’t commenced

h. Use of psychiatric exams at a capital sentencing proceedingi. Estelle

1. After D was convicted of murder, the Dr. also testified (on the basis of his pretrial exam of D) as to D’s future dangerousness, one of the critical issues to be resolved by a TX jury at the capital sentencing proceeding

2. The jury answered the future dangerousness question in the affirmative (as well as others) and under TX law, the death penalty for D was mandatory

3. SC held that both D’s 5th and 6th Miranda rights were violated by the use of the Dr.’s testimony at the penalty phase of the case.

ii. Allen1. Partly on the basis of a psychiatrist’s testimony, D was found to be a sexually dangerous

person under state law. 2. Although proceedings under the law were accompanied by procedural safeguards found in

criminal trials, the SC found that the proceedings weren’t criminal w/in the meaning of the 5th

privilege against compelled self-incrimination, thus, no Miranda protection as in Estelle

i. Miranda v. 4th Amendment Exclusionary Rulei. 4 th Amendment Exclusionary Rule

a. Serves to deter future constitutional violations and isn’t a personal rightb. Does nothing to remedy a 4th violation, but merely mitigates the judicial consequences of that

violationii. Miranda

a. Protects an individual’s right against self-incrimination and also protects against the use of unreliable statements at trial

j. Miranda applies to questioning outside the USi. Bin Laden: US law enforcement must conform w/ Miranda when questioning individuals,

even when they are in the custody of foreign authorities

k. 14th Amendment Due Process – Voluntariness Testi. For confessions to be admissible, the Due Process clause of the 14th Amendment requires that

they be voluntary1. Voluntariness is assessed by looking at:

i. The totality of the circumstances, including:1. the suspect’s age, 2. education, mental and physical condition, and 3. previous experience w/ the criminal justice system,

ii. Along w/ the setting, duration, and manner of police interrogation 2. Connelly:

i. Mentally ill D approached a police officer and, without any prompting, confessed to a murder. The officer immediately advised him of his Miranda rights and defendant said that he understood the rights – confession was deemed voluntary, a confession isn’t deemed involuntary just bc is a result of mental illness where police didn’t compel it

3. Fulminantei. Paid informant offers to protect D/prisoner against rough tx in jail if D tells him about

D’s involvement in murder. D confesses and is convicted of murder. ii. Confession was involuntary bc there was a credible threat of physical violence to

D unless he confessed. 4. Chavez

i. P asserted that the officer engaged in coercive interrogation tactics while he was undergoing medical treatment for potentially fatal injuries from being shot by another officer. P contended that the interrogation was unconstitutional, even though P was never charged with a crime and his statements were never used against him.

ii. Since P wasn’t compelled to be a witness against himself, and the circumstances warranted the intense questioning to preserve P’s version of events, there was no violation of the 5th, but further consideration was necessary to determine if there was a substantive due process claim

5. Williams II – Christian burial casei. D was arrested for the abduction of a missing girl. His attorney advised him that police

officers would be transporting him to another city, that the officers would not interrogate him, and that he should not talk to the officers until consulting with the attorney. After D’s arraignment, another attorney similarly advised him. The officers gave D Miranda warnings. During the trip, D expressed no willingness to be interrogated. In the car, one officer discussed how expected snow might make recovery of the body and a Christian burial impossible, and that D was the only one who knew where the body was. D eventually led the officers to the body.

ii. D was entitled to a new trial because he was deprived of the Sixth Amendment right to assistance of counsel, as judicial proceedings had been initiated against him before the start of the car ride, and the officer deliberately set out to elicit information from him when he was entitled to the assistance of counsel.

iii. D did not waive his right to counsel because he consistently relied upon the advice of counsel in dealing with the authorities.

6. Passive v. Active Secret Agentsi. Active secret agents: Henry

1. D made incriminating statements after his cellmate, a paid undercover informant, elicited such statements even when D was already indicted and while he was in custody

2. D’s statements to a government informant should not have been admitted at trial because by intentionally creating a situation likely to induce the D to make incriminating statements without the assistance of counsel, the government had violated D’s 6th Amendment right to counsel.

ii. Passive secret agents: Kuhlman 1. D made incriminating statements to his cellmate who didn’t attempt to elicit the

statements 2. 6th doesn’t forbid the admission of statements made to an informant placed in

close proximity who made no effort to stimulate conversations about the crime

IX. Pretrial Identification Proceduresa. Generally

i. The purpose of all the rules concerning pretrial identification is to ensure that when the witness identifies the person at trial, she is identifying the person who committed the crime and not merely the person whom she has previously seen at the police station

b. 6th Amendment Right to Counsel i. When right exists: A suspect has a right to the presence of an attorney at any POST-charge

lineup or show-up. 1. At a lineup, the witness is asked to pick the perpetrator of the crime from a group of persons,

while a show-up is a one-to-one confrontation between the witness and the suspect for purposes of identification.

ii. Role of counsel at lineup: 1. The right is to have an attorney present during the lineup so that the lawyer can observe any

suggestive aspects of the lineup and bring them out on cross examination. 2. There is no right to have the lawyer help set up the lineup, to demand changes in the way it’s

conducted, etc. iii. Photo identification

1. The accused doesn’t have the right to counsel at photo identifications. 2. But, the accused may have a due process claim regarding the photo identification.

c. Due Process and Other Limitationsi. A D can attack an identification as denying due process when the identification is

unnecessarily suggestive and there is a substantial likelihood of misidentification1. Both parts of this standard must be met for the D to win, and that to meet this difficult test,

the identification must be shown to have been extremely suggestive. ii. Factors used in determining the admissibility of evidence offered by the prosecution concerning an

identification: 1. The opportunity of the witness to view the accused at the crime, 2. The witness’ degree of attention, 3. The accuracy of his prior description of the criminal, 4. The level of certainty demonstrated at the confrontation, and 5. The time b/t the crime and the confrontation

i. Against these factors is weighed the corrupting effect of the suggestive identification itself (the likelihood of misidentification)

X. The Scope of the Exclusionary Rules a. Generally

i. The exclusionary rule is a judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights.

b. Standing to object to the admission of evidence i. Testimony given by D in order to est. his standing may not thereafter be used against him on

at trial on the issue of guiltii. Ds charged w/ crimes of possession may only claim the benefits of the exclusionary rule if their

own 4th rights have been violated iii. Carter: Where a cop looked through window blinds into a lessee’s apt., observed Ds bagging

cocaine, and subsequently obtained a warrant for their arrest, SC found that one who is merely present w/ the consent of a householder can’t claim the protection of the 4th (no reasonable expectation of privacy) against unreasonable searches (Ds cited to the officer’s observation).

1. However, an overnight guest in a home can claim protection of the 4th, and property used for commercial purposes is treated differently for 4th purposes than residential property.

c. Scope of the rulei. Not only must illegally obtained evidence be excluded, but all evidence obtained or derived

from exploitation of that evidenceii. Brown: Where D was wrongfully arrested (arrested w/o probable cause), given Miranda warnings,

and later made an incriminating statement, SC found that the statement was tainted fruit of the illegal arrest and thus inadmissible.

1. Miranda warnings don’t purge the taint of an illegal arrest. d. Exceptions

i. Inevitable discovery: 1. It is more difficult for a D to have live witness testimony excluded as the fruit of illegal police

conduct i. If the witness is freely willing to testify and the testimony will deter future illegal

conduct, the taint that attaches to an illegally obtained witness will be purged. 2. If the prosecution can show that the police would have discovered the evidence whether or

not they had acted unconstitutionally, the evidence will be admissibleii. Intervening act of free will:

1. An intervening act of free will by the D will break the causal chain b/t the evidence and the original illegality and thus remove the taint

i. Ex: D was released after an illegal arrest but later returned to the station to confess – this voluntary act of free will removed any taint from the confession.

e. Use of Excluded Evidence for Impeachment Purposesi. Some illegally obtained evidence that is inadmissible in the state’s case in chief may

nevertheless be used to impeach the D’s credibility if he takes the stand at trial 1. Voluntary confessions in violation of Miranda

i. An otherwise voluntary confession taken in violation of Miranda requirements is admissible at trial for impeachment purposes

ii. However, a truly involuntary confession isn’t admissible for any purpose 2. Fruit of Illegal Searches

i. The prosecution may use evidence obtained from an illegal search that is inadmissible in its direct case to impeach the D’s statements made in response to proper cross-examination reasonably suggested by the D’s direct examination

ii. BUT, such illegally obtained evidence can’t be used to impeach the trial testimony of witnesses other than the D

f. Use of D’s Silence for Impeachment Purposesi. Prosecution can use D’s PRE-arrest silence for impeachment purposes

1. BUT, a D’s POST-Miranda warnings silence or request for counsel can’t be used for impeachment purposes

g. Burden of proofi. Issue arose in ‘dropsy’ cases where police accused D’s of dropping bags of drugs as they

approached so them the police would search Ds w/o a warrant1. The police bear the burden of showing the legality of the police conduct, HOWEVER, if

D challenges the admissibility of physical evidence by making a motion to suppress, he bears the burden of proving that the evidence shouldn’t be used

XI. Right to Speedy Triala. The 6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy

trial”b. Standard

i. A determination of whether the D’s right to a speedy trial has been violated will be made by an evaluation of the totality of the circumstances – the following factors should be considered:

1. Length of delay, 2. Reason for delay, 3. Whether the D asserted his right, and 4. Prejudice to the D

ii. Excuses for delay: Majority of states provide for additional time upon a showing of ‘good cause’c. When right attaches

i. The right to a speedy trial doesn’t attach until D has been arrested or charged. 1. It’s very difficult to get relief for a pre-arrest delay under the standard, bc the D must show

prejudice from a delay, and good faith investigative delays don’t violate due process d. Military v. civil charges

i. The time b/t dismissal of military charges and a subsequent indictment on civilian charges can’t be considered under the standard

XII. Plea Bargaininga. Enforcement of the bargain

i. A D who enters into a plea bargain has a right to have that bargain keptii. The plea bargain will be enforced against the prosecutor and the D

b. Power of the state to threaten a more serious chargei. Consistent with the contract theory of plea negotiation, the state has the power to drive a hard

bargain – a guilty plea isn’t involuntary merely bc it was entered in response to the prosecution’s threat to charge the D w/ a more serious crime if she doesn’t plead guilty

c. Prosecutioni. When a plea rests on a promise or agreement set forth by the prosecutor, such a promise has

to be fulfilledii. The govt.’s exercise of some selectivity of enforcement isn’t in itself a Constitutional violation bc

prosecutors have discretion to permit a D to plead to a charge w/ a relatively minor punishment while refusing the same procedure for his co-D

1. The responsibility to determine whether to prosecute, whom to prosecute, and when to prosecute rests on the govt.

d. Defendant i. If D doesn’t live up to the plea agreement, his plea and sentence can be vacated

ii. Ex: D agreed to testify against a co-D in exchange for a reduction in charges from first to second degree murder. If D fails to testify, the prosecution can have D’s plea and sentence vacated and reinstate the first degree murder charge

XIII. Guilty Pleasa. Guilty plea waives right to jury trial

i. A guilty plea is a waiver of the 6th Amendment right to jury trial – b/t 70 and 95% of all criminal cases are settled by guilty pleas

b. Contract viewi. There is a trend toward the contract view of plea negotiation and bargaining – the plea agreement

should be revealed in the record of the taking of the plea and its terms enforced against both the prosecutor and the D

c. Professional responsibilityi. The Constitution doesn’t require the govt. to disclose material impeachment evidence prior

to entering a plea agreement w/ a criminal Dii. A trial judge’s refusal to accept a plea is a reversible error where no abuse of the

prosecutor’s discretion is shown1. The initial discretion rests w/ the prosecutor, the judge must provide reasons for departure

from the prosecutor’s decision – these considerations include: i. Fairness to the defense, fairness to the prosecution interest, protection of the sentencing

authority of the court – there is no basis for denial of a guilty plea on a public interest theory

d. Taking the pleai. Advising D of the charge, the potential liability, and her rights

1. The judge must advise the D personally (not the defense counsel), informing her: i. Of the nature of the charge to which the plea is offered (not all the elements of the

offense – just the crucial ones like the intent element of murder), ii. Of the maximum possible penalty and of any mandatory minimum, but failure to

explain a special parole term isn’t fatal, iii. That she has a right not to plead guilty, and that if she does, she waives her right to

trial e. Unfairly informed D not bound:

a. If counsel makes unfair representations to D concerning the result of the D’s pleading guilty, and the D can prove this, the D isn’t bound by her record answer, obtained at the plea taking

f. Collateral attacks (attack on a judgment entered in a different proceeding) on guilty pleas after sentence:i. Pleas that are seen as an intelligent choice among the D’s alternatives are immune from

collateral attackg. Plea offered by D who denies guilt

i. When a D pleads guilty despite protesting his innocence, the plea will be seen as an intelligent choice by the D, and w/drawal of the plea won’t be permitted when there is other strong evidence of guilt in the record

XIV. The Criminal Triala. Presence of D in court

i. The 6th Amendment gives D a right to be present at his trial1. However, this right can be LOST if D is so disorderly that the trial can’t continue in his

presence i. Judge has 3 options when dealing w/ a disorderly D:

1. Contempt of court: Judge threatens to fine or imprison D2. Remove from court: Remove and continue trial in D’s absence3. Bind and gag: Last resort bc while D gets to be present in courtroom, his ability to

communicate w/ counsel is restrained ii. Conditions of D’s presence:

1. D must be allowed to wear street clothes, shackling D’s hand and feet only allowed where justified by an interest specific to the facts of the case

b. Presence of D at in-chambers hearingi. If issues resolved at the in-chambers hearing don’t affect D’s right to cross-examine, then

can hold hearing w/o Dc. Access to evidence

i. Bagley: Where D filed discovery motion regarding whether witnesses were to be paid to give testimony and prosecutor failed to disclose this information, SC found that the suppression of evidence is a constitutional (due process) violation only if it deprives D of a fair trial

1. There must be a reasonable probability that the result of the proceeding would’ve been different if not for the disclosure of suppressed evidence

ii. BUT, the prosecutor isn’t obligated to produce exculpatory evidence where the defense doesn’t request its disclosure (must show that defense was aware of such evidence and its nature)

iii. Also, the 6th Amendment right to cross-examine doesn’t include a right to discover and obtain materials useful in cross-examination

d. Access to witnesses i. Vanzuela-Bernal: The prompt deportation of alien witnesses who were determined by the

state to possess no material evidence relevant to the criminal trial was justified1. D must show that the evidence lost would be material AND favorable to defense

ii. Roviaro: The state can’t refuse to disclose the identity of a key informant who was the only witness against the D

e. Duty to preserve evidencei. A failure to preserve evidence isn’t a due process violation UNLESS D can show that the

govt. acted in bad faith in the loss or destruction of such evidence f. D’s right to remain silent

i. The state can’t comment only D’s failure to testify during trial on the issue of his guilt bc this violates the 5th right to not self-incriminate

ii. The sentencing judge can’t draw an adverse inference from D’s silence at sentencing 1. BUT, jury may infer what they want w/o the help of the court 2. Upon D’s request, and even over the objection of D, the court can instruct the jury that D

has a constitutional right to not testify and no inference of guilt may be drawn from D not testifying

iii. There is no constitutional violation when defense promised jury D would take the stand, subsequently didn’t, and prosecutor impliedly pointed this out bc prosecutor’s statements added nothing to the impression already made by the omission of the promised testimony

g. Counsel’s argumentsi. D can only get his conviction reversed for the prosecutor’s closing arguments when the

comments infect the trial w/ such unfairness as to make the resulting conviction a denial of due process

1. Darden: When the weight of evidence against D is heavy, and there is overwhelming eyewitness and circumstantial evidence to support a finding of guilt, this reduces the likelihood that the jury’s decision was influenced by an improper closing argument

ii. A prosecutor can’t give her opinion as to D’s guilt or the credibility of witnesses, but she can point to the evidence presented and the factors that show whether one is telling the truth or not

h. Submitting the case to the juryi. The trial judge can’t direct a guilt verdict, BUT may direct an acquittal if the evidence is so

insufficient that reasonable men couldn’t conclude, in a light favorable to prosecution, that guilt has been proved beyond a reasonable doubt

i. Jury deliberations and verdicti. The constitution limits a state’s power to define crimes in ways that permit juries to convict

a D even though they are in disagreement about whether D committed a crime ii. Tanner:

1. The trial judge was correct in concluding that evidence by one juror that other jurors took drugs and drank alcohol during recess and fell asleep at trial was inadmissible under FRE 606(b)

i. Testimony by juror about jury deliberations in post-verdict proceedings inadmissible unless jury was influenced by extrinsic, outside influences

iii. Actions by jurors that constitute misconduct and provide grounds for overturning a conviction: 1. Discussing the case outside of the jury deliberations, 2. Inspecting on their own the scene of a crime, 3. Conducting experiments, 4. Using a dictionary to defined a term mentioned in the judge’s charge, 5. Lying during voir dire, 6. Considering info about the case that comes from a source other than trial

iv. Deadlocked jury1. Judge may send a jury back for additional deliberations2. Judge may give supplemental jury instructions to deadlocked jury to encourage those in the

minority to listen to the arguments of those in the majority 3. Judge has discretionary power to discharge the jury without the consent of either party when

sufficient and reasonable time for deliberation has passed

XV. Re-prosecution and the Bar Against Double Jeopardya. Double jeopardy

i. The 5th Amendment: One can’t be tried for the same offense twiceii. Once jeopardy is attached, the D can’t be tried for the same offense

b. When jeopardy attaches i. Has there been a factual determination by the trier of fact?

1. Yes? Double jeopardy bars re-trial 2. No? Re-trial is allowed

ii. Jury trial: When the jury is empanelled and sworn in iii. Non-jury trial/Bench trial: When the first witness is sworn in and the court begins to hear

evidence c. Re-prosecution when D argues that prosecutor intentionally caused a mistrial

i. Kennedy: D was granted a mistrial based on prosecutorial misconduct and when state later sought to retry D, D argued that the prosecutor intentionally caused a mistrial

1. Double jeopardy attaches when D is prejudiced by govt. actions that are intended to provoke a mistrial – D must prove this by showing that the prosecutor intentionally acted in bad faith

d. Hung juryi. The state can retry a D whose first trial ended in a hung jury

e. Mistrial for manifest necessity i. Re-prosecution following a mistrial

a. A trial may be discontinued and the D can be re-prosecuted for the same offense when there is manifest necessity to abort the original trial

b. Manifest necessity: In Somerville, it was an unintentional procedural error f. Re-prosecution following an acquittal

i. When prosecution on a CHARGE is terminated at the request of D on grounds that don’t go to the factual merits of the case, D CAN be retried on that charge

a. Thus, double jeopardy doesn’t bar two trials but only bars a retrial after a determination on the merits

b. Scott: Because D avoided the first charge by persuading the court to dismiss it on a basis that did not depend on guilt or innocence, the D wasn’t deprived of his right against double jeopardy

ii. When a D is ACQUITTED at trial, can’t be retried for the same offense BUT an appeal isn’t barred by the double jeopardy rule

iii. Implied acquittals 1. Ex: If a jury is given instructions for two different charges (1st or 2nd degree murder) and

returns w/ a verdict for 2nd degree murder, then D has been impliedly acquitted of the 1st degree murder charge and CAN’T be retried for that offense

i. BUT if jury is hung on the 1st degree charge, then D can be tried again on that charge g. Retrial after successful appeal

i. The state may retry a D who has successfully appealed a conviction 1. BUT, the state CAN’T retry D after a successful appeal if the ground for reversal was

insufficient evidence to support a guilty verdictii. Retrial is permitted after a successful appeal when a case is reversed bc of trial error (ex:

erroneously admitted evidence)h. Sentencing on retrial

a. Double jeopardy doesn’t prohibit the imposition of a harsher sentence on conviction after retrial, and such a sentence is valid provided it doesn’t run afoul of the vindictiveness concerns

2. If a judge imposes a greater punishment than the first trial after D has successfully appealed and then is reconvicted, she must set forth reasons for the harsher sentence – this is to ensure D isn’t vindictively penalized for exercising his right to an appeal

i. Re-prosecution by a different sovereigni. The constitutional prohibition against double jeopardy doesn’t apply to trial by separate

sovereigns – if D commits a crime in both states, both states can prosecute Dii. Also, federal prosecution isn’t barred by a prior state prosecution of the same person for the

same act, and vice versa