CRIMINAL PROCEDURE OUTLINE

Right to Counsel

At hearing, the judge asks for means of support and determines how people support themselves.

Betts – overruled by Gideon

Gideon v. Wainright – held that 6A holds a fundamental right to counsel; overruled Betts.

Powell v. Alabama – (state case) – recognized right to counsel as a corollary of right to be heard in 6A.

Argensinvger v. Hamlin – Court struck probision allowing states the right to withhold free representation of indivividuals in a non jury matter. Essentially, no person may be incarcerated without the right of counsel.

Scott v. Illinois – SC refused to extend the right of counsel if only possibility of jail time existed.

Nickels v. US – uncounseled conviction may be used to enhance sentence in a subsequent conviction.

When does the right to counsel attach?

6A provides the right to counsel in your defense. Rights attach at critical stages of proceeding. Pre-indictment – no right to counsel usually exists (except perhaps at hearing). However, post-indictment activity is usually considered critical.

Review Book Info

Sixth Amendment provides that an indigent defendant has the right to have counsel appointed for him by the government in any prosecution where the accused can be sent to jail. Further, the government cannot interfere with a non-indigent defendant’s right to retain his own counsel.

Right to have counsel generally

Gideon v. Wainright – 6A right to counsel applies to the states, not just the federal government.

Various Stages – The right to appointed counsel does not mean merely that the accused has the right to have a lawyer at trial, other parts of prosecution constituting critical stages bring the right to counsel as well.

Proceedings where right applies

(1) Felonies(2) Misdemeanors with potential jail sentences (Argersinger)(3) Juvenile Delinquency – right attaches even though the little punk may go to an

institution as opposed to a jail. (In Re: Gault) (looks like little Willie was a bad boy long before he met Jim McMahon).

Proceedings where right may not apply

(1) If a D is not sentencesd to incarceration, the state is not required to appoint counsel for him, even if the offense may be punishable by imprisonment. (Scott)

(2) Misdemeanor conviction may be used to increase the permissible prison sentence for a subsequent conviction even though the D was not offered appointed counsel during the first proceeding (Nickles)

Critical Stage Doctrine = 6A is triggered wherever there is a critical stage of the proceedings. In brief, a stage will be critical if D is compelled to make a decision which may be later formally used against him.

Appeals – A convicted defendant’s right to appointed counsel during his appeals depends on the nature of the appeal.

(1) A defendant has the right to counsel for his first appeal as of right. (Douglas v. California)

(2) D has no right to counsel for discretionary review (Ross v. Moffit) (attorney used as a sword rather than a shield).

(3) D does not have a right in pursuit of federal habeas corpus after exhausting state appeals. However, he does have the right to prison assistance in filing the appeasl. (Bounds v. Smith)

Knowingly and Intellegently – D will be found to have waived his right to counsel only if he acted knowingly and intelligently. Standard is normally low, but stricter following submission of a guilty plea.

Right to effective counsel – Lawyer must be: (1) reasonably competent; and (2) any deficiency cant be prejudicial to defense. (Strickland v. Washington)

9/24/02 – Chapter 5 – Arrest, Search, and Seizure

4A – protects against unreasonable search and seizure.

Wolf v. Colorado – 14 A does not incorporate 4A rule against search and seizure (overruled by Mapp).

Mapp v. Ohio – court said that 4A requires state courts to exclude evidence obtained by illegal searches. Reinforces probable cause – no reason to enter zone of privacy without sufficient reason. Affirms protection of individual rights. Mapp creates the exclusionary rule.

U.S. v. Leon – exception to the exclusionary rule. Court ruled that, even if warrant later proved defective, as long as police seized evidence upon reasonable belief, evidence may be used in prosecution. (Court sees as a procedural error, Carr sees as jurisdictionsal).

Exclusionary rule – provides that evidence obtained by violating D’s consitutional rights may not be introduced by prosecution at D’s trial, at least for purposes of providing direct proof of D’s guilt.

Stuff culled from review book

Good faith exception to the exclusionary rule – US v. Leon – exclusionary rule has been modified so as not to bar the use in the prosecutions case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probably cause.

Arizona v. Evans – good faith exception has been extended to cover the situation where the police rely on what they think is an outstanding arrest warrant that is not in fact outstanding.

Caveats to the rule culled from the reading and my notes/ also PROTECTED AREAS AND INTERESTS

One PA Board of Probation & Parole v. Scott – evidence obtained by gov’t agent according to methods that violate the 4A used in quasi-criminal cases is excludable.

INS v. Lopez – exclusionary rule does not apply in civil deportation hearings.

US v. Jacobsen – evidence obtained by private persons is not exclueded, except when persons acted on behalf of the police.

Katz v. US – police must obtain search warrant before tapping public phone – phone booth is a temporary private place

CA v. Greenwood – peron not have objectively reasonable belief in privacy in trash at curb.

Oliver v. US – open fields not fall within 4A because they don’t offer necessary protection

Florida v. Riley – no reasonable exception of privacy in face of helicopter surveillance at 400 ft. (anyone can do it).

Kyllo v. US – evidence obtained using sense enhancing equipment not allowed – seen as intrusive because not everyone has that type of technology to do so. (how does this differ from the helicopter??)

US v. Shiapani – evidence obtained by prosecution by be used against the defendant at the sentencing stage.

Burdeau v. McDowell – Exclusionary rule characterized as a restraint on sovereign immunities, not as a restraint on other than gov’t agencies.

US v. Place –using canine to sniff for drugs in a public place is OK.

US v. Knotts – use of electronic tracking beeper = OK

US v. Karo –monitoring of electronic beeper is NO OK when info may be obtained visually.

Dow Chemical Co. v. US – aerial photography obtained during a search of chemical company OK b/c does not reveal detailed information.

Andresesn v. MD – personal papers obtained during a search of a law office may be used against the owner of the papers.

Zurcher v. Stanford Daily – Search warrant may be issued to search property belongnign to innocent 3rd Party.

101002 SEARCH WARRANTS AND PROBABLY CAUSE

Basis for issuing search warrants is probable cause – notion that there has to be facts and circumstances within knowledge of police authorities belief that offense has been or will be effected.

Must be enough belief that evidentiary items are present in a particular location.

Spinelli v. US – reaffirmed the two part test stated in Aguilar – hearsay conclusions don’t establish a probable cause for a warrant. However, a two part test is established:

(1) has to be showing of underlying circumstances so magistrate may decide veracity; and

(2) Officers preparing affidavit must state info was credible and reliable.

Illinois v. Gates – totality of circumstances test totality of circumstances should be considered to determine whether probability of finding contraband exists.

MA v. Upton – affirmed the Gates principle of considering totality of circumstances.

Consequence of Gates in overruling Spinelli is that a strong showing can make up for a weaker one.

Stuff culled from my reading notes

Wong Sun v. US – probable cause also required for warrantless arrests and searches.

Probable Cause v. Probable Search

(1) cause – probable that crime committed and person to be arrested committed it.(2) Search – must be a substantial probability that certain items are fruits of crime

and are to be found in area to be searched.

Franks v. DE – D may challenge veracity of affidavit used to obtain warrant if it is obtained through false affirmations.

McCray v. ILL – warrantless arrests and search may be valid if identity of informer is not produced

MD v. Garrison – search valid when officers misunderstood breadth and scope of warrant.

Stuff culled from Review Book

Evidence from officer’s own observation - In some situations, probable cause for a search or arrest can be established from the police officer’s own personal knowledge. IN the case of an arrest, for instance, some of the kinds of evidence which a police officer might acquire first-hand and which could contribute to probable cause:

(1) flight of a suspect when approached by a policeman;(2) physical clues (e.g. footprints or fingerprints linked to a particular person);(3) voluntary admissions by a suspect;(4) suspicious or surreptitious conduct;(5) suspect’s previous criminal record (see Harris)(6) suspect’s presence in a high crime area.

INFORMATION FROM INFORMANTS

Courts have generally applied stringent tests for determining whether an informant’s testimony establishes probable cause.

Totality of circumstances test – The Supreme Court has decided hta thte issue of whether an informant’s information creates probable cause for a search or arrest is to be determined by the totality of circumstances. (See Gates) - Gates is a highly significant case because it explicitly overrules the more restrictive Spinelli standard.

** Among other things, Gates lowers the burden necessary to obtain probable cause and strengthens the value of the anonymous tip. The direct consequence is essentially that a strong showing on one of the prongs makes up for a weaker one on one of the other ones.

Corroboration – also, corroboration of aspects of the informant’s story may be combined with the story itself in determining whether there is probable cause. Likely to be the case where: (1) police don’t know identity of informant; and (2) corroboration is the future actions of third party that are not easily predicted (see Gates)

Identity of Informer - Police officers must, however, be subjected at suppression hearing to any cross examination which the defense attorney wishes to make concerning reliability of informant, only the informer’s identity is privileged (see McCray)

Reasonable suspicion for investigatory stop – totality test allows for reasonable suspicion to make a reasonable stop see Alabama v. White

Suspect’s prior reputation – a suspect’s reputation for past criminal activity may be considered in determining probable cause if supporting facts indicating past criminality are also present.

Oridinary Citizen – most courts have presumed that the ordinary citizen who is either a victim of a crime or an eyewitness to a creim is a reliable informant regardless of whether reliability is tested. See US v. Lewis

Reactions to statements by other police officers – sometimes police officer making an affidavit for a warrant will act in response to statements made by other police officers – Whitely v. Warden – implies that in such circumstances, the arrest or search is valid only if the maker of the original alert, order, or poster acted with probable cause.

101702 – ISSUING AND EXECUTION OF WARRANTS

Notes for this are thin to non-existent. The following are cases culled from notes.

Coolidge v. NH – an attorney general is not allowed to issue search warrants. Such a practice violates the fundamental premise of the 4A and the 14th A. Can’t be both: (1) investigating authority; and (2) authority issuing search warrants.

Shadwick v. Tampa – Court clerk may issue a search warrant – non-techincal definition of probable cause includes clerks. Clerk must be: (1) neutral and detached; and (2) capable of determining whether probable cause exists

Roker v. Commonwealth – SC helad that evidence is suppressed when the judge doesn’t read the warrant – no rubber stamps are available.

US v. Davis – addressed magistrate decision magistrate decision re: warrant is final; no forum shopping. (Now, many magistrates don’t deny, but tell you what to fix).

*** Execution of the terms of the warrant need be executed in 10 days (otherwise, probable cause may not be fresh)

*** No-knock authority – NY requires a specific no-knock authorization prior to gaining entry. No knock will be given if one can show that announcing authority will result in the destruction or loss of contraband.

Ybarra v. ILL – right to search a premises (i.e. bar) does not extend to unforeseeable search of persons on the premises (i.e. can’t have a warrant for the bar, then empty the bad boy out and pat down all of the patrons)

Stuff I culled from the Book –

Connally v. GA - A magistrate receiving a salary for issuing warrants and not receiving salary for not issuing warrants is not neutral and detached.

Things to be seized – must, like the premises to be searched, be specifically identified in the warrant. One old Supreme Court case, never explicitly overruled, stated that “nothing is to be left to the discretion of the officer executing the warrant” Marron

Search of person – a warrant may be issued for search of person – must state name, info, etc.

Ex parte warrant - issuing of warrant is non-contestable.

FRCP 41(d) requires that search be conducted within 10 days after issuance of the warrant.

Intrusions into body –

Intrusions into body, whether done pursuant to a warrant or not, must be reasonable.

Balancing test – The individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. Winston v. Lee.

Removal of bullet – Winston – court determine not reasonable to allow the state to place D under general anaesthetic to rip a bullet out of his stinkin guts.

Local anesthetic – not necessarily always precluded by Winston

Taking of blood – forcible taking of blood to determine whether drunk driving is not unreasonable. (see Schmerber v. CA)

X-Rays and stomach pumping – likewise, the use of x-rays or stomach pumping to obtain evidence that the defendant is concealing drugs withing is alimentary canal may under some circumstances may be unreasonable.

Self incrimination – where D is forced to undergo a bodily intrusion so that the state may extract evidence that he has committed a crime, it could be plausibly argued that entirely apart from the reasonableness of the search, there is a violation of the 5As preclusion against self-incrimination.

Good faith exception – Supreme Court has held that if the police reasonably believe that the warrant which they have been issued is vlaid, the exclusionary rule will not apply to bar the items seized from being introduced at the trial of the person whose rights were violated by the search.

EXECUTION OF WARRANT CON’T

Michigan v. Summers – police may detain over of premises searched (premises searched w/ warrant) with basis for reasonable belief.

Carr, quite obviously, thinks that until the warrant is executed, there should be no basis for the detention.

Horton v. CA– items in plain view may be seized immediately apparent that police have evidence before them.

Wilson v. Leyine – Police executing warrants may be acoompanied by third parties. However, presence of media members is unconstitutional because it does not aid execution.

US v. Watson – An authorized law enforecement officer may make a warrantelss arrest in a public place despite having an opportunity to procure a warrant after developing probably cause for arrest when authorized by statute.

Here, Supreme Court essentially said that warrantless arrests for misdemeanors and felonies are OK when in front of a peace officer. Carr sees this as a shortcut method.

Tennessee v. Garner – use of deadly force to arrest a fleeing felon is sometimes unreasonable under the law – suspects posing no threat (and actually climbing in a bedroom window) can’t be cut down.

Gerstin v. Pugh – Defendant entitled to judicial determination of probably cause as a prerequisite to pre-trial detention.

United States v. Robinson – Full body search incident to a lawful arrest is permissible even if officer does nto suspect arrestee is carrying weapons or has evidence on his person.

Whren v. US – traffic stop = reasonable grounds to detain for limited time; may result in legal plain sight recognition of drugs, etc. so long as original stop is letitimate.

US v. Edwards – once in custody, D’s effects may be lawfully searched even after delay – warrant clause of 4A is not applicable to post-arrest seizures.

Knowles v. IOWA – SC disallowed search following traffic stop b/c: (1) need to discover and preserve evidence is minimal in traffic violations; (2) officer danger lower than Robinson in speeding case.

Copp v. Murhpy – where police can’t preserve evidence by plain sight, warrantless taking is permissible.

WARRANTELSS ENTRIES AND SERACH OF PREMISES

Notes, again, are pretty thin – will supplement with cases and stuff from the book.

Chimel v. CA – A search of a defendant’s entire house is not constitutionally justified as incident to his arrest.

Because the police did not need to search to: (1) protect themselves or (2) to protect evidence, the search was unconstitutional.

AZ v. Hicks – Court held that police officer conducted illegal search in moving stereo to check ID number after entering apartment following firing of shot – see plain view doctrine.

Plain view doctrine – even if you are looking for something elese you can sieve if in plain view if: (1) lawfully on premises when search is made; (2) the item offends the law.

In Hicks, the police officer failed the plain view test because the item did not on its face offend the law.

Segura v. US – warrantless entry into apartment OK where person who was arrested answered the door and cops went in to secure the apartment for 19 hours before getting warrant.

WA v. Chrisman – a warrantless entry of premises will be permissible incident to and following arrest under some circumstances (think dumbass kid going back to dorm room).

** WA v. Chrisman was a plain view case – was police officer lawfully on premises (yes); Di the item on its face offend the law in some way? (yes)

Vale v. LA – search of house following porch arrest not substantially contemporaneous with arrest because it is not confined to the immediate vicinity of arrest. (this it the thing that everyone got all nuts about in class – think curtilage)

Steagald v. US – Court did not have the right to search Steagald’s home when warrant only allowed for arrest of Lyons, even though Lyons was arrested in Steagald’s home.

Payton v. NY – Police officers cannot forcibly enter a private residence without a warrant to make a routine felony arrest.

Illinois v. MacArthur – waiting inside trailer to observe activity before getting a warrant was OK because (1) reasonable belief that home contained evidence of crime; and (2) good reason to fear destruction of evidence.

Criteria for waiting somewhere to observe before getting warrant and conducting search:

(1) reasonable belief that home contained evidence of crime; and (2) good reason to fear destruction of evidence.

Minnesote v. Olson – exigent circumstances to allow warrantless arrest of murder car getaway driver did not exist when acting on a tip and murder weapon had already been recovered.

WARRANTLESS SEIZURES AND SEARCHES OF CONTAINERS

California v. Carney – generally, warrant must be procured before search is undertaken. Because the automobile is readily mobile, lesser expectation of privacy exists.

**Automobile exception to motor vehicle also applies to motor homes.

CA v. Acevedo – 4A does not require warrant for police officers to open a sack in a movable vehicle when they lack probable cause to search the entire car. Rule is that police may search all autos and containers therein if they believe contraband is inside.

Brown v. Texas – person may be stopped only if the officers have a reasonable suspicion based on objective facts that individual was involved in criminal activity. Therefore, officers shining light into car and noticing a balloon in a crack ridden neighborhood were entitles to search.

Illinois v. Andrews – Privacy interests in contents of container diminished with respect to a container that law enforcement authorities have already opened and found to contain illegal drugs.

** No privacy interests in an already opened container found to house illegal drugs.

NY v. Belton – Police officer may search the passenger compartment of a car as a contemporaneous incident of the arrest of an occupant of the car.

Colorado v. Bertin – items discovered during a proper inventory search, even the contents of a closed bay, may be used as evidence in criminal prosecution.

Stuff Culled from Review Book

** Exigent circumstances often cause the warrant requirement to be suspended when a car search is involved. Thus, police may search a vehicle w/o warrant if such search is necessary to preserve evidence, as will be the case where the car can be quickly driven out of the jurisdiction.

Incident to arrest – car passenger’s compartment may be searched incident to the arrest of the driver or passentget.

Ratoinales:

(1) mobility: great mobility of automobile;(2) Lesser expectation of privacy – less than home or office

Search at station after arrest

Chambers v. Maroney – little difference between search of car without warrant and search of car at stationhouse later.

Where warrant obtained beforehand

When police have opportunity to obtain a warrant, Chambers rationale may not apply (See Coolidge v. NH). Notably, however, in Florida v. White, the Court upheld the police’s warrantless seizure orf a car even though officers could have and failed to procure a warrant.

California v. Carney – police have the right to conduct an immediate search of a vehicle at the place where they have stopped it (to make sure it doesn’t go away).

Whren v. US – Police may seize upon a traffic violation to stop the motorist.

Knowles v. IOWA – police may not conduct further search upon traffic ticket; (1) lesser offense no need to save evidence; (2) nothing to indicate officers life in danger.

US v. Ross – closed containers, when found in an autombile, may be searched if legal Carroll search is authorized.

Wyoming v. Houghton – where police have reasonable grounds for a Belton search, they may also search any container that they know belongs to a passenger rather than to the driver, even if the police have no grounds whatever to suspect the passenger of any wrongdoing. ** Holding does not cling to person’s wallet or anything attached to person.

Stop and Frisk (pick up flashcards here)

Terry v. Ohio – Stop and frisking by police officer is constitutionally permissible when officer has neither probable cause nor arrant ** limited search of outer clothing**

FL v. Bostick – Seizure not occur because officer approaches and asks a few questions – so long as a person feels free to go about his business (even on bus) encounter remains consensual and is OK.

CA v. Hodari – Person fleeing from not arrested, seizure doesn’t occur if the subject doesn’t yield.

US v. Cortez – detaining officers must have a particularized and objective basis for suspecting particular person stopped of a criminal activity.

Sebron v. NY – frisk without reasonable facts supporting it was unlawful because there were no facts supporting a reasonable belief that the defendant was armed and dangerous.

FL v. J.L. – frisk of the suspect following an anonymous tip is unreasonable.

US v. Sokolow – factors fitting profile of drug courier do not detract from evidentiary significance by trained agent.

US v. Hensely – police officer does not need to have first hand knowledge of evidence creating a reasonable suspicion when making stop and frisk in reliance on a flyer or a bulletin issued by other police officers.

ILL v. Wardlow – nervous, evasive behavior coupled with presence in a high crime area is enough to reason to pull someone over.

FL v. Roger – investigative detention must be temporary and last no longer than is necessary to effectuate purpose of stop.

US v. Sharpe – 20 minute stop does not meet the 4A brevity requirement, not bright line rule, common sense requirements consider whether police attempt to pursue a means of investigation likely to confirm or dispel suspicions quickly.

Kolender v. Lawson – police officers effectuating a stop are not allowed to compel an answer.

Ohio v. Robinette – traffic cop is not required to tell person free to go after valid detention. Warning = impractical.

US v. Place – seizure of a traveler’s luggage for two days violated Terry 4A principles of reasonableness.

MI v. Long – broad discretion for officers to conduct pat downs at traffic stops.

Davis v.. Miss. – detention for fingerprinting may be permissible under 4A.

Dunaway v. NY – seizures are only reasonable if supported by probable cause.

Stuff conjured up from review book

Nature of stop and frisk – Suppose police are performing routine patrolling functions, They may briefly detain the suspicious person and conduct a detainment and weapons search (aka stop and frisk) in certain circumstances as a result of Terry v. Ohio.

Terry v. Ohio – Court held that a stop and frisk could be constitutionally permissible despite the lack of probably cause for either full arrest or full search. Court distinguished the pat down from a search and seizure because of exigent circumstances.

110502 FRUIT OF THE POISONOUS TREE

Wong Song – stands for several propositions – most important one is fruit of the poisonous tree – Question becomes whether info received in interrogation is admissible – whether info achieved in violation of Miranda may be received as part of the fruit of the poisonous tree.

Fruit of the poisonous tree – doctrine that evidence illegally obtained shall not be used for the purpose of gaining other evidence – once the original evidence, the tree, is shown to have been unlawfully obtained, all evidence stemming from it, namely the fruit, is equally unusable.

110502 WIRETAPPING

Carr doesn’t like it because he thinks it is an infringement upon something basic to us. As keepers of attorney client privilege, phone is an instrument to make appointments, NOT to discuss legal matters, etc.

** Significant when thinking about business of wire tapping.

Olmstead v. US – 4A does not prohibit wiretappin, amendment only protects v. search and seizure of material things (i.e. persons, papers, houses, etc.) – no violation occurs when police do not trespass to set up the wiretap.

Berger v. NY – Supreme Court imposed a high standard for eavesdropping – authorized eavesdropping w/o identifying specific procedures – statute allowing for court orders is not valid.

Schwartz v. Texas – stood for proposition that state-gathered evidence was OK; overruled by Lee v. FL.

Lee v. FL – stood for conversationtional evidence that was seized.

Silverman v. US – gov’t seized evidence by putting spike mike into wall –court held that physical trespass would no longer be the measure.

(now we get to the stuff actually in the reading…….)

Burger v. NY – Court imposed a high standard for eavesdropping – refused to authorize eavesdropping without identifying some specific procedures –

** Any tapping of phone has to be done for specific crimes. NY permissive eavesdropping statute lacked a precise and determinative place for where search may end. No requirement that convo be described. SC though there could be a showing that it was in public interest.

Court said you had to have a return on warrant for wiretaps – must make periodic reports on wiretaps. – think of Carr talking about the big funky pad thing he had for wiretap stuff.

Limitations on Wiretaps

(1) you can only tap the phone for a period of 30 days – after that, you need to show probably cause if you are in the market for up to 30 days.

As the lawyer supervising the tap, you have to give officers a minimization lecture – they’re only there to listen to conversations incidental to the alleged crime. If they determine it’s not a call related to the alleged crime, the machine must be shut down. Also have to fill in line sheets regarding the time of the call, etc. You also must determine if people are listening too much/not enough etc.

Talk of minimization is important only have a right to listen to minimal conversations. Also require you to service a notice of eavesdropping

** At some point after tap is over, courts require them to serve a notice of eavesdropping on you. Have to have details of offense / location of faculty where interceptions take place as well. Also have to list period of time for which intercept was authorized.

More cases mixed in from reading

Katz v. US – held that 4A restrictions applied to evidence obtained even by non-trespassory measures.

Title III – Congress adopted legislation granting law enforcement officials extended powers to conduct wiretapping and electronic surveillance

US v. Cafero – Title III requires automatic termination upon attainment of the objective of authorization irrespective of whether a statement to effect closing has been incorporated by judge.

Scott v. US – failre to make good faith effort to comply with minmimizatoin order does not otherwise invalidate the wiretap.

Dolan v. US – authorization for interception of defendant’s oral statement does not need to include a specific statement by court that it approves of a covert entry to install electronic equipment.

US v. Torres – Court has inherent 4A authority to issue warrants for TV surveillance.

Lopez v. US – recorded convo between gov’t agent and D is admissible.

Lewis v. US – agent entering a home based on misrepresentation and observing an unlawful narcotics transaction permitted to testify.

Hoffa v. US – 4A not protect wrongdoer’s misplaced trust that a person in whom he confides will not reveal his wrongdoing.

Weatherford v. Bursey – Invasion of an undercover agent into atty-client relationship is not a per se violation of 6A rights.

US v. White – Katz did not overrule OnLee, testimony re: info obtained by electronic eavesdropping is OK.

Stuff culled from Review book re: wiretapping

In Katz, the Supreme Court held that unauthorized electronic eavesdropping is an illegal search and seizure. Katz, however, is silent on the question of participant monitoring of conversations – namely, wiretapping or eavesdropping with the consent of one of the parties.

In response to Katz, Congress came up with this wacky Title III thing that allowed for wiretapping in some situations. Applies to wiretapping and bugging

A judge may authorize an intercept if:

(1) there is probable cause to believe that a specific individual has committed one of the enumerated crimes;

(2) There is probable cause to believe that the interception will furnish evidence about the crime;

(3) Normal investigative procedures have been tried and have failed or reasonably appear likely to fail or to be dangerous;

(4) There is probable cause to believe that the facilities from which, or the place where, the interception is to be made are or will be used in connection with the offense or are linked to the individual under suspicion.

** Emergency exceptions are allowed for organized crime

** Minimizing is very important

**Covert entry (see Dalia v. US) is allowed to install the things.

ENTRAPMENT – sadly, I skipped the big dog classes on Entrapment due to Moot Court time issues

Cases

Sorrels v. US – entrapment defense – first recognized after prohibitionist talked Sorrels into providing booze.

US v. Russel – Conviction for criminal offense may be upheld even when commission of offense is not possible except for assistance of government agent – where defrendant is part of criminal conspiracy before and after gov’t agent’s involvment, no claim for entrapment exists.

Objective person test - was the police conduct likely to induce a normally law abiding person to commit the offense?

Subejctive person test – puts person essentially on trial for past behavior and admits hearsay, speculation, and rumor as to previous bad acts.

Williamson v. US – court frowned upon contingent fee based NARCs.

US v. Grimes – overturned Williamson – said contingent fee NARCs are not necessarily better or worse.

Matthews v. US – D may incorporate inconsistent defense: (1) may deny knowledge of crime; (2) may also claim entrapment.

Hampton v. US – As long as D has a predisposition to commit the crime, overinvolvment of gov’t agency does not constitute entrapment.

US v. Kelly – when gov’t officials persist in trying to get an official to accept a bribe after official has rejected the bribe, conduct is not outrageous to the point of denying due process

Due process defense to entrapment – must be predicated on intolerable gov’t conduct (see Jacobsen)

Jacobsen v. US – gov’t could not overcome entrapment defense wher eit has spent 26 months trying to convince a person to commit a crime where the evidence is that he had no disposition to commit the crime.

US v. Gendron – affirmative response to ordinary opportunity implies a disposition to commit a crime

US v. Hollingsworth – D must be in a position to commit a crime without gov’t help

US v. Knox – subjective analysis of D’s predisposition – in determining pre-disposition, must look at D’s mental state and whether the D was able and likely, based on experience and training to commit the crime.

Info from Review Book

Meaning of entrapment – Generally, undercover agent plays agent provocateur inducing suspect to do something bad. While solicitation of mere statements will almost never be objectionable, the agent’s inducement to the suspect to perform a criminal act may sometimes be sufficiently coercive to assert the defense that he was entrapped into committing the crime.

Definition – Supreme Court has recently defined the entrapment defense this way: The gov’t “may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce the commission of the crime so that the gov’t may prosecute.” (see Jacobsen)

Constitutional basis for entrapment defense – Supreme Court has never recognized any right to entrapment defense – not of constitutional dimension – will likely, however, respect state law re: entrapment defense.

POLICE INTERROGATION

Seems like I skipped this biotch for moot court as well. Sadly, the only available notes are in my binder and in the review book

POLICE INTERROGATION

** How the courts are handling or trying to handle.

Courts have some measure of difficulty trying to figure out exactly what the right thing to do is. Court is, according to Carr, so confusing that it is sometimes hard to tell right from wrong.

QUARLES V. NEW YORK

Facts: After midnight, police apprehended a suspect in the rear of a supermarket – he was alleged to have just raped a woman. Alleged rapist was alleged to be carrying a gun – arrested by four police officers – at least one had his gun drawn – order the suspect to stop and put his hands on his head. By this time, there are several other officers on the scene – original officer frisks, finds an empty shoulder holster – asked where the gun was – respondent nodded in the direction of some empty cardboard cartons and stated that the gun was “there.”

At that time, respondent was surrounded by four police officers, gun was allegedly in his holster.

Nothing is mentioned as to why respondent is not charged with rape – charged with possession of the gun that was found.

This case stands for the proposition that while there is a Miranda rule requiring prophylactic warnings, (defendant never heard Miranda warnings here)

Issue: whether the response was admissible (re: where gun was); and whether (under fruit of the poison tree policy) and whether gun that flowed from response was admissible as well. Court says there are circumstances where police will be excused from providing prophylactic Miranda warnings when there is an issue of public safety. Said the presence of the gun in the store presented some kind of public safety warning.

Court decides, in its collective majority wisdom, that they would recognize the public safety exception. Thought it would be easy to determine when the public safety exception would be brought into play.

Carr thinks Dissent by Marshall makes the most sense:

(1) No need not to have given Miranda warnings(2) Public Safety issue really non-existent. Notion that there might be an accomplice

who would use gun to murky up the waters doesn’t flow as naturally as the first time read in case.

(3) Didn’t seem like there was any possibility, based on the facts of the case, that the gun could have been anywhere but in the store.

Failure to give warning as a public safety exception doesn’t grow out of a solid set of facts. Carr thinks: puts police in an untenable position because they have a whole thicket to muddle through each time – have to wonder as to whether they have a public safety argument with Quarles as a factual predicate.

Can’t make threat argument because all of the weapons were holstered.

Carr thinks: Once Miranda rule is in effect, (think about the cards that are in place – cards are uniform – cops know how they deliver the rights) Even if they read Quarles his rights, the worst that would happen is that they have an empty shoulder holster and they start to search.

MORAN V. BURBINE

Defendant agrees to talk to police about the murder investigation, never talks to a lawyer. Unbeknownst to the defendant, sister tries to get a lawyer; sister doesn’t get the lawyer she wants but gets a lawyer nonetheless.

The lawyer calls the police station and asks to have her call transferred to the detective, states that she would act as burbine’s counsel in a lineup.

Unidentified person tells her that they have no plans to question and that he won’t be in a lineup. Ms. Munson was neither that Burbine was a suspect in the murder or that the Providence police department (Burbine was arrested in Cranston) was questioning re: murder.

In point of fact, Burbine was questioned that night. Issue becomes whether authorities ought to have the right to mislead the lawyer. Does the misleading the lawyer impact any rights the suspect might have under the fourteenth amendment?

No – police were not in any sense required to let lawyer know what situation was with Burbine, nor did they have responsibility to notify Burbine that a lawyer was trying to get in touch with him.

Whatever the philosophical lesson is with this case, the practical conclusion that you have to reach from this case is that : if somebody hires you, not sufficient to call police statement and say “don’t question my client” - you HAVE TO GO TO THE PLACE WHERE YOUR CLIENT IS HELD TO SPEAK TO THE CLIENT – you have a right to see your client.

Carr finds it disturbing because the thinks a case like this steals from the system some of the integrity the system ought to have.

Usefulness allowing people in executive branch of system to thwart judicial branch of system is, in Carr’s opinion, indefensible.

Carr thinks there is nothing definitive to say on the whole chapter on police interrogation except that, at the proper time, you have to do the research. Every time an issue comes up re: what the client’s rights might be under Miranda, even though this case is already here that the S.Court said…..Carr would raise the issue every single time because his hope is that when he makes the argument in a particular case, it changes the outcome. Even though there was Miranda on the points, in Quarles they prevailed.

Leon in early 80s talks about how there is a violation of 4A rights because it is subject to doctrine of inevitable discovery – simply a belief or posture saying that even though we got this in violation of 4A rights, at some point, some prosecutor would rightly have raised the argument that said listen – true - the statement led directly to the discovery of the gun, but it was inevitable that we were going to find the gun. Court said even the response that the gun is over there, the police are able to say listen: if he never said a word to us, we were going to put him in the police car, put him in the store, and search top to bottom until we came up with the gun, and the gun still would have been used as evidence (inevitable discovery)

Get out there, do the research, and find some way to make it work for you. Dozens of cases that provide different twists and spins as to what the 4A provides. Even if you don’t get it under Miranda, you can give it a shot under at 5A or 6A claim.

Carr doesn’t see exclusionary rule as stopping police misconduct, believes that it is dictated by the conduct of the 4A – says there are times when the government cannot show probable cause to get evidence, sys 5A supposes there are times when the government is not able to get certain kinds of evidence, i.e. what’s inside your mind, mental operations, etc.

Only question is: whether average person can understand something the way that we understand it.

If you don’t know you have a right, then it’s just as good as not having it at all – constitutional rights may be considered the same way------think-----if people don’t KNOW about their rights, they may as well not have them right now.

Next time we will do chapter 9 – lineups – and then we have chapters 9 and 10

Res gesti – video of you driving in your car smashed at night really pisses Mr. Carr off. He thinks if you are videoed weaving around in you car, it should be shown in court, but you shouldn’t be shown hopping on one foot for a cop. “res gesti” means something along the lines of the thing itself. This wacky videotape plan would impede on the 5A

Brown v. Miss – confession excluded under due process voluntarienss test

Find out what due process voluntariness test is

Ashcroft v. Tenn – conviction reversed following continuous 36 hour interrogation session.

Miller v. Fenton – voluntariness of a confession is not a “factual issue” but a “legal wuestion” meriting independent consideration in a federal habeas corpus decision.

McNabb v. US – SC held any statement made by someone being detained unecessearily before taken before magistrate

McNabb / Mallory rule – figure out what this is

Mallory v. US –

Crooker v. CA – D’s confession was voluntary, even though D had been held for three days, had been questioned a dtotal of three hours, and was denied permission to speak to a laywer.

Cicenia v. LaGay – affirmed Crooker.

Spani v. NY – Court reached the view that once a person was formally charged by indictment or information his constitutional right to counsel had begun ***think critical stage analysis we discussed in first part of analysis.

Massiah v. US – clarified concurring opinions in Spano.

**Escobedo v. ILL – D has a right to counsel when being held for purpose of eliciting a confession. At some point, investigation was not just of crime and the person became the accused.

Mallory v. Hogan – 5A privilege v. self incrimination do not extend to pre-trial interrogation in early stages of case. However, court bgan to find a greater significance in that right when it held that privilege applied to states through 14 A .

**Miranda v. AZ – 5A privilege extends outside of criminal court proceedings and serves to protect all folks whose freedom is at stake – When D is taken into custody, it is required that his legal right to remain silent and his right to an attorney be presented him.**

MI v. Tucker – Evidence otherwise admissible is not barred because it was unvocered through an inadmissible confession.

State v. McKnight – D need not have a lawyer present so long as he made aware of his right to remain silet to avoid risk of self – incrimination

Beckwith v. US – rejects focus tst of Escobedo – when court finds as a fact that the situation is non-custodial in character, the Miranda warnings are not required.

Berkemer v. McCarty – when officer stops a motorist, need not give Miranda warnings before questioning to determine suspicion.

**seems like no Miranda in non-custodial cases.

People v. Kron – RESCUE DOCTRINE – statements obtained in violation of Miranda should be allowed if police interrogation of a suspected kidnapper is motivated primarily by a desired to save victim’s life.

NC v. Butler – D’s silence, coupled with an understading of his rights and a course of conduct indicating waiver support a conclusion that D waived his rights. (constructive waiver of rights)

MI v. Moselely – second level Miranda safeguards – once a D has exercised his right to terminate an interrogation, he may be later interrogated on another subject so long as a reasonable time has passed and new warnings are given.

Edwards v. AZ – EDWARDS RULE – once a suspect has invoked his right to counsel he may be subjected to further interrogation until counsel made available to him unless he himself initiates further convos with police.

**Edwards rule is also known as the BRIGHT LINE RULE – once the suspect has asserted a desire to have counsel, they may never question him again prior to supplying him with that consel.

Massiah v. US – MASSIAH DOCTRINE – Once a D has been indicted, police may not extract incriminating statements without the presence of counsel.

Stuff culled from review book

**Voluntariness test, as discussed previously in this section – was REJECTED by Miranda- Miranda represents a complete rejection in that if the confession is involuntary, no evidence showing that the suspect was aware of his rights may overcome the failure to give the required warning. **This thing protects criminals.

Sixth amendment – right to counsel. Once a suspect has been indicted or otherwise charged, it will be a violation of his right to counsel to obtain info from him in absence of counsel.

Reasonable suspect test – Whether a suspect is or is not in custody is to be determined by an objective reasonable suspect test. In other words, the issue is whether a reasonable person in the suspect’s position would belive tha the was (or was not) in custody at that moment.

Custodial interrogation – questioning initiated by law enforcement officers afer a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.fs

Custody?

(1) station house = custodial(2) patrol car = not custodial(3) voluntary station house questioning = not normally custodial(4) lack of formal arrest – no dispositive – they may haul you in regardless(5) street questioning = no general rule(6) near the scene of the crime questioning – no general rule(7) traffic stops – normally not custodial(8) interview at home – normally not custodial

Rhode Island v. Innis – whenever a person is in custody is subjected to either express questioning or its functional equivalent. INNIS TEST

Arizona v. Mauro – when police conduct a situation where they bring, for example, a spouse, in to meet a suspect, it is not necessarily interrogation because officers do not interrogate a suspect simply by hoping that he will incriminate himself.

Emergency circumstances – questiongs asked under emergency circumstances may be OK – see Quarles v. NY (PUBLIC SAFETY EXCEPTION)

Public Safety exception – comes from Quarles –

Court determined that any existence of threat to public safety should be determined by objective, rather that subjective standard. Test is whether a reasonable officer in that position would conclude that there is such a threat.

Relinquishment of Miranda – Brewer v. Williams – for a waiver to exist, it must be shown not only that the defendant understood his Miranda rights, but also that he intended to relinquish them.

Silence and Waiver – Accused’s silence after being read his Miranda warnings does not constitute waiver.

Refusal to sign wavier not fatal – suspect’s refusal to sign a written waiver from not held to automatically negate Miranda rights. See North Carolina v. Butler

Wavier w/o lawyer – MORAN V. BURBINE – Miranda rights will be effective even though police: (1) decline to tell the suspect that a lawyer has been retained for him; and (2) precent, or by use of trickery discourage, the lawyer from seeing his client.

Mentally ill suspect – no matter how irrational the suspect’s decision to waive his Miranda rights, the waiver will stand so long as there was no police coercion (Colorado v. Connelly)

Resumption of questioning – Michigan v. Mosley – if questioning is resumed after D asserts his right to remain silent, susbsequent questioning in which D spills the beans is not vioaltive of his rights.

INITIATING THE CONVO TEST – Edwards – only way D may terminate his stated desire for counsel w/o lawyer is by initiaiting the convo with the police.

Minors and waiver – minors may not waive rights w/o attorney or guardian consult – see In re: William L.

LINEUPS, ETC.

Our notes for this section are similar to the Ladies Man’s car. In other words, they “do not exist.” Therefore, the case notes are as follows:

Cases

US v. Wade – post-indictment lineup requires the presence of counsel

Kirby v. ILL – D does not have a right to counsel at a pre-trial lineup before being charged with an offense (think critical stage thing)

US v. Ash – D does not have a right to counsel at a post-indictment photographic identification

Stowll v. Denno – A first identification of a suspect (in an emergency situation) does not violate a defendant’s right to due process

Neil v. Biggers – Evidence of a show up ID (whatever the hell that is) does not always violate due process

Manson v. Braithwaite – a per se rule should not be adopted to exclude evidence obtained from improperly suggestive photographic identification even though such evidence muight be otherwise considered reliable.

Stuff culled from review book

**at least after the indictment, right to counsel exists at any pretrial confrontation procedure.

** Any identification which occurs without the presence of counsel (excluding waiver) must be excluded as evidence.

Wade-Gilbert rule affirmed – suspect was brought before the judge at a preliminary hearing, purpose of which was determine whether there was probable cause to seek an indictment and to fix bail. He was not represented by counsel.

GRAND JURY INVESTIGAION

Carr’s take on grand juries:

They could indict a ham sandwich.

Carr was trained never to make off-the-record comments to grand juries. Nobody is present at the grand jury – secrecy is key – 23 members of grand jury are present, (12) have to agree to indict.

Grand jury warden is present, prosecutor is present, and witness is present. You may have lawyer present at grand jury proceeding, although the lawyer is not allowed to participate.

The notion of a grand jury goes back more years than we care to remember.

One of the things grand juries do that is extremely useful is represent a screening opportunity – they don’t hold the person responsible for committing a crime, but serve as a filter of sorts.

12 of 23 people hearing evidence have to hear ev. And believe probable cause exists that crime was committed.

Indictment is not evidence of anything, merely a vehicle by which authorities can haul you in and hold you to answer a charge in court. After a grand jury has determined there is reasonable belief you committed crime, (petit) jury makes determination as to crime.

Since there is only this prosecutor present and the prosecutor is the legal adviser to the grand jury, it is easy to determine which ev. Goes before grand jury.

Prosecutor is sort of a hybrid – not working for executive branch, not really a member of judiciary either.

Investigatory grand juries can go on for a year or more in some cases.

When served with a subpoena by a grand jury, you can’t say no (may make motion to quash) – you are stuck

Use and derivative use immunity – if you are the driver of a getaway car, grand jury may give you use and derivative use immunity – you have to answer the questions asked

of you and in turn (use immunity) – they will not use anything derived from that statement against you.

Transactional immunity – immunity bath that NYS uses – means that we won’t prosecute you at all related to transactional immunity.

New York does not give you transactional immunity and then allow you to lie to grand jury. If it’s determined, after you get immunity bath, that you lied, then you have transactional immunity for the bank robbery, but you have no immunity for perjury.

If you’re a member of the grand jury, part of the oath is that you don’t divulge what goes on in the grand jury room.

The only person who is allowed to divulge what goes on in the grand jury is the witness. (Think of when Linda Tripp appeared before Maryland grand jury).

Courts have 5 reasons supporting secrecy requirements of grand jury:

(1) prevents escape of potential targets of grand jury investigation;(2) prevents tampering with witnesses(3) encourages witnesses’ free disclosure(4) protects accused(5) promotes lay participation(6) promotes public confidence

This may all be true, to some extent, according to Carr.

Grand jury often used to determine “he said she said” sex crimes – let the grand jury decide when you have to make a decision – you don’t always know.

Grand juries have three things they can do when the case is over:

(1) can indicit individual if 12/23 people believe crime committed(2) if they don’t have 12 in agreement, they can vote no true bill – whatever the

felony charge was they though they had, they don’t and a lower (misdemeanor) crime may be charged.

(3) Could decide (they do this mostly in cases that have to do with politics) to issue a grand jury report where they don’t find any crime has been committed.

If you’re not sure whether or not you have certain constitutional rights, you may ask the prosecutor if you may consult with your lawyer prior to answering a question. Usually the prosecutor will do that so long as the witness is reasonable about his request. The prosecutor will not, however, allow you to contact the lawyer after every request.

If the three of you can’t decide, the three of you may go back to the judge and try to iron it out.

Pretty much decided with certainty that you don’t have a 5A right when you’re in the grand jury – you’re not on trial at the grand jury, you’re just there do determine whether a crime was committed – your 5A right deals only with crimes etc.

Series of cases determining questions re: targets of grand jury and what is or is not admissible.

Could the client claim attorney client privilege with respect to the papers when delivered to lawyer – reason was that papers had been prepared out of a business necessity and not somehow prepared by the client himself. Just because you deliver papers to the lawyer that had fsbeen delivered by lawyer, they did not somehow come out on the other end as a functional equivalent of testimony given in a civil trial.

Once you have a client indicted by the grand jury and a jury has been sworn, at that point you have a right to the grand jury testimony of anybody who is going to be a witness in the case against your client. Indicia of reliability exists that is undeniable.

Witness, if he is going to come on at trial and give testimony against the client, must be tested for veracity under oath.

Hearsay Evidence

Grand jury can indict you on hearsay evidence, but it is not OK to convict on hearsay evidence.

Cases

Blair v. US - witnesses may be required to testify before the grand jury (better answer the subpoena)

Boyd v. US – Gov’t may not require a person to produce personal and incriminating documents

US v. Dionosio – Requirement by the grand jury that a D produce voice exemplars for comparison w/ recorded convos by the police doesn’t violate D’s rights.

US v. Calandra – witnesses may not be summoned to testify before a grand jury to answer questions derived from illegally obtained evidence.

US v. R. Enterprises – standards for enforcement applicable to trial subpoenas and apply to grand jury subpoenas as well

US v. Mandujuano – 5A right v. self incrimination does not protect a witness from perjury given in a grand jury situation when Miranda warnings aren’t given

Fisher v. US – business papers prepared by another but relating to the business activities of a D are not protected under the 5A compulsory production

Braswell v. UYS – Custodian of corporate books and records cannot assert a 5A right against self incrimination with regard to the books

Doe v. US – 5A privilege v. self incrimination does not apply to business records of a sole proprietorship.

Stuff culled from review book

Grand Jury and privilege v. self incrimination – 5A provides that no person shall be compelled in any crimnal case to be a witness against himself – if witness believes that the testimony he is being asked to give might incriminate him in a subsequent case, he may assert the right not to appear.

If subpoeanaed, he must show up and assert the 5A claim.

Transactional v. Use immunity – see above.