CRIMINAL PROCEDURE OUTLINE SPRING 2002 DEAN ROBERT POWER I. INTRODUCTORY MATERIALS a. Civil Cases i.

Private causes of action ii. Remedy is compensation (usually) b. Criminal cases i. Public Remedies in 99% of the cases ii. The other 1% will be civil unless the "compensation" is so punitive as to be regarded as criminal penalty 1. Remedies a. Generally fines AND/OR i. If the statute says "fine" it is probably criminal ii. If the statute says "civil fine" it is probably civil unless the civil fine is for an extraordinary amount ("civil fine of 1,000,000,000") b. Jail i. Jail is automatically criminal UNLESS 1. Sex offenders are in civil incarceration in order to provide treatment 2. Contempt a. Civil-jail is not mandatory: only persuasive tool to enforce order of the court b. Criminal-mandatory payment or jail-time i. COMPARE Clinton Hypo: mandatory payment of fine for contempt was deemed civil c. Incorporation Doctrine i. Duncan v. Louisiana: Whether the right to a jury trial under the 6th Amendment is incorporated through the 14th Amendment to apply to the states 1. Majority view: (J. White)Selective IncorporationThe rights in the Bill of Rights that are important to the American system of justice and other similar rights not enumerated are incorporated to apply to the states 2. Concurring: (J. Black)Total IncorporationAll of the rights in the Bill of Rights, and no others, are incorporated to apply to the states 3. Dissent (J. Harlan)Federalism View14th Amendment involves liberty and due process, ideas of fundamental fairness. As such, whether a right in the Bill of Rights applies to the states should be determined on a case-by-case basis with a view to the principles and fundamental aspects of society ii. Floor v. Ceiling 1. The federal Constitution is a floor: grants only minimal rights 2. State Constitutions can be a ceiling: may grant more protection than the federal Constitution. THE FOURTH AMENDMENTTHE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSON, HOUSES, PAPERS AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALL NOT BE VIOLATED, AND NO WARRANTS SHALL ISSUE, BUT UPON PROBABLE CAUSE, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED.

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Introduction i. The government search and seizure of persons, houses, papers, and effects must be reasonable ii. Warrants shall have probable cause supported by oath/affirmation describing the searches and/or seizures. iii. The Reasonableness and the Warrant Clause 1. Generally, for a search to be reasonable, there must be a warrant: otherwise, the search or seizure is presumed unreasonable. iv. "The People" 1. Fourth Amendment applies when a US government searches or seizes a US person v. Probable Cause 1. Minimum showing to support application for a warrant vi. State Action 1. Only a US government can be bound by the search or seizurethe state must act 2. Private action does not trigger Fourth Amendment a. Other legal remedies are available (theft, larceny, etc) 3. IF private action is so closely related to the government so as to be regarded as acting on the government's behalf, then the private actor may be subject to the Fourth Amendment under the law of agency vii. Remedies 1. Suppressed evidence at trial for violation of the Fourth Amendment b. Identifying Searches or Seizures: STEP ONE i. Search occurs where 1. Subjective (Actual) expectation of privacy exists in the person searched a. Steps taken to show private activity AND 2. That is a reasonable expectation of privacy recognized by society as legitimate a. KATZopens up telephone booth, closes door, pays money, and has a conversation with another. Police placed listening device on booth. Katz had an actual expectation of privacy because he closed the door behind him, paid money, used the telephone, and there was no one else around. At that time, society recognized closed phone booths as reasonably private because it is not necessarily the public status of the phone booth but the actions and location that serve as the objective privacy expectation. i. The Searchesconversation, opened briefcase and looked, went through papers ii. The seizuresarrest, took briefcase (see next) ii. Seizure occurs where 1. There is an interference with property rights a. Seizure of the person (arrest) is an interference with personal freedom iii. Open Fields DoctrineFails the objective privacy expectation of Katz 1. A person does not have a legitimate expectation of privacy in an open field a. Society is not prepared to recognize that as legitimate i. If property is open, it is not private ii. The text of the Fourth Amendment states houses, papers, and effects b. OLIVERpot in the farm, argued Katz, held that there was no search for the reasons stated above c. Distinguish searches and seizures heresearch of the open field may be ok, but if there it a seizure, then it must be reasonable 2. Curtilage in the open fieldmay meet the legitimate expectation prong of Katz 2

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a. Proximity to the home b. Enclosures c. Use of the area within the curtilage d. Steps taken to protect from passers-by Consensual Electronic Surveillance (Informant wears a wire) 1. Assumption of Risk Test a. People have a reasonable expectation of privacy against the police, but there is no reasonable expectation of privacy against non-police whom people speak tothus, one "assumes the risk" of having that person relay messages to the police Bank Records 1. Where police request bank records, there is no reasonable expectation of privacy because the records are readily accessible to the bank employees. As such, a person assumes the risk that the bank records will be accessed by others, including the police Pen Registers telephone companies record the number dialed 1. A person does not have a reasonable expectation of privacy when dialing a number because telephone records are voluntarily turned over to everyone working for the telephone company Pagers 1. Where a person calls the pager and leaves a phone number, the person who leaves the phone number has no reasonable expectation of privacy because they have consented to broadcasting their number on the display of the pageranyone can read that number. a. Similarity between pager display and caller I.D. BUT 2. A person who possesses a pager has a reasonable expectation of privacy in the numbers stored inside a. Similarity between numbers stored in pager and paper address book or private papers Trash 1. A person has no reasonable expectation of privacy in their trash because it is accessible by the public, trash collectors, and the like. a. Once trash is placed on the curb in front of a house, the result is virtual consent that someone will take away the trash, even though not consent to the police taking the trash away. 2. Trash in an open filed a. If the open field doctrine applies, there is no search BUT b. Seizure must still be reasonable i. There is probably no seizure because a person gives up possession of trash BUT ii. If trash (e.g., burn barrel) within the curtilage, may be a search Public Areas 1. Homeless persons a. Reasonable expectation of privacy in contents of duffel bag and cardboard box kept on public property i. Possessory interest in property ii. Homeless want to protect their privacy 1. Distinguish trash cases where no expectation of privacy exists b. No reasonable expectation where belongings stored on private property 3

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No reasonable expectation of privacy in a bathroom stall where anyone could observe from outside the stall x. Aerial Surveillance 1. Where public has access to viewing the area surveilled, there is no reasonable expectation of privacy 2. Person assumes the risk BUT 3. If overflight disturbs property, the search is too intrusive a. Ciraolo1000 feet above home in a plane was not a search b. Dow ChemicalAerial photographs of industrial plant taken by the EPA was not a search c. Riley400 feet above home in a helicopter was not a search xi. "Plain Feel Searches" 1. Manipulation of a bag (touching, feeling) in public bus is a search under Katz a. Probing tactile examination of property is more intrusive than plain viewing b. May be equally likely or unlikely for members of the public to touch bags, BUT touching has a different effect than viewing i. Bondofficer at border patrol felt 's bag then asked him to search. gave consent and found drugs. Held: search. actually expected privacy because the bag was closed and not easily found on the top shelf. There is a reasonable expectation of privacy because even though others might have touch the bag the same way, it was highly unlikely that other passengers would manipulate the bag as the agent did. 2. Because of September 11, the outcome would probably differ. xii. Thermal Detection Devices 1. Kyllopolice use thermo-imaging device to detect heat level from home and discover marijuana. Held: search 2. A device that detects heat levels from inside the home is a search a. Subjective expectation of privacy regarding the home and the heat therefrom i. Just because technology can identify activities in your home does NOT mean a person loses their subjective expectations of privacy b. Reasonable expectation of privacy regarding technology i. Availability to the general public 1. More available to the general public, less likely it is a search 2. Less available to the general public, more likely a search ii. COMPARE thermo device with eyeglasses 1. If police use eyeglasses to detect activity, not a search because many members of the public have access to eyeglasses 2. If police use night vision goggles to detect activity, probably a search because not everyone has access to night vision xiii. Police Dogs 1. Dog sniffing is not a search itself if all sniff reveals is presence of an illegal substance BUT 2. Cannot be grounds by itself for opening bag, luggage, etc. Reasonableness and Warrant Clauses i. Introduction 1. Search is presumed unreasonable unless there is a warrant BUT 4

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2. Reality is that there are many exceptions to the warrant clause (more warrantless searches than not) ii. Johnsonofficer smells opium in hallway of hotel, knocks on door, hears rustling, asks to come in, gives consent, and officer finds opium. Held: even though probable cause existed, the search was illegal because there was no warrant. 1. Reasons for the warrant requirement a. Checks and balances b. Not based on the amount of evidence BUT c. Based on the officer's decision i. Police are engaged in the competing enterprise of ferreting out crime ii. Magistrates are impartial decision makers THEREFORE iii. A magistrate must make the determination whether a warrant will issue 2. Functions of the Fourth Amendment a. Justification for searches b. Limit arbitrariness d. Probable Cause i. Introduction: General Rules 1. Search or seizure a. Probable cause to believe that there is evidence of a crime therein 2. Arrest a. Probable cause to believe that the is culpable of criminal activity ii. Obtaining a search Warrant: Spinelli and Aguilar Testassist the magistrate to make an informed decision and provide context for the issuing magistrate 1. Veracity of person giving information to police a. Number of times informant has been used b. Number of times informant has been correct AND 2. Reliability of information given to the police a. Basis of knowledge regarding the information BUT 3. If either veracity OR reliability is missing (one or the other) a. Police can CORROBORATE with facts as a substitute for the missing element i. External corroborationinformant gives information then police find more evidence in support ii. Internal corroborationinformant has all details and gives details to the police 4. Spinelli regularly at an apartment with two separate lines, informant says was running illegal gambling, and FBI knows as a bookie. FBI gets warrant and searches apartment, finds evidence of illicit gambling. HELD: illegal search because warrant was not supported by probable cause. Police tried to use facts to replace the veracity AND reliability prong. Since neither was present, police could not use corroboration. Court required at least veracity OR reliability AND corroboration. iii. Obtaining a search warrant: Gates Test (overruling Spinelli, sort of) 1. Totality of the circumstances test: Factors a. Relationship between officer and informant(veracity and reliability) b. Hearsay evidence i. Hearsay alone may present a problem c. Police follow-up investigation 2. Standard for magistrate to issue the warrant a. Fair probability that evidence of a crime will be found (common sense) 5

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3. Standard for court reviewing magistrate's decision a. Substantial basis for concluding probable cause existed (deferential to magistrate) 4. GatesAnonymous letter with conclusory statements, police investigation reveals criminal activity, police get warrant, search the car, trunk, and house. HELD: search valid because probable cause existed a. Under Spinelli, there was no veracity because the letter was anonymous (informant never used before). There was corroboration but there was no reliabilitythe letter had no real basis of knowledge because there were only conclusory statements. HOWEVER, the test is "probable cause" not simply the Spinelli factors Therefore, under the totality test, there was probable cause. iv. Persons giving information as basis for probable cause 1. Police are presumed truthful and reliable 2. Citizens are treated as upstanding citizenspresumption that they are truthful a. Eyewitnesses (bank employees) 3. Informants do not carry the same presumptions a. Informants merely giving information Nuts and Bolts: Place to be search and things to be seizedinformation in the warrant i. Place to be searched 1. Warrant must be correct a. Correct person, specific name b. Correct address, correct place BUT 2. Test a. Whether the officer make a good faith effort to accurately describe place to be searched ii. Things to be seized 1. Police can search places that could reasonably hold the "thing" to be seized a. Proceeds/Fruits of crime iii. Execution of the Warrant 1. Must be reasonable execution of the warrant a. Example: swallowed a balloon of cocaine, warrant described the particular place they were looking for BUT it would be unreasonable to cut him open, conduct ultrasound etc. to search his bodyjust wait till he shits it out. iv. Federal Rule of Criminal Procedure 41 1. Federal magistrate or state court within district can issue warrant 2. Property/persons seized a. Contrabanditems not lawfully possessed b. Property c. Instrumentalities of crime d. Fruits of crime 3. 10-day limit on the life of the warrant ("staleness") a. things/persons might move from the place to be searched 4. Must be conducted in the daytime (before 10:00 PM) a. This is part of the reasonableness requirement 5. Copy and receipt for property seized 6. Remedies for unlawful search/seizure a. s can motion for a return of property if believed unlawfully seized OR b. Motion to suppress evidence at trial 6

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v. Magistrates: Must be Neutral and Detached 1. No lawyer requirement 2. Judiciary must issue, not law enforcement officer a. Magistrate cannot be employed as an officer 3. s can challenge the adequacy of the magistrate's ability to issue a warrant BUT a. it is very rare that they will win b. The only exception is where a magistrate does something completely ridiculous, like going along on the searches/seizures Exceptions to the Warrant Requirement i. Arrests without a warrant (bright-line rules) 1. IF felony or misdemeanor in presence of officer THEN no warrant requirement to arrest 2. IF felony not in presence of officer AND probable cause THEN no warrant requirement to arrest a. Watsoninformant says Watson has stolen credit cards, police set up meeting between informant and Watson, Informant gives signal and police rush inWatson does not have them on his person, but consents to police search of car, they find credit cards in floor mat. Watson challenges the arrest because the arrest caused the search. Heldno arrest warrant required i. Probable cause was met because the informant was reliable, evidence of credit card from informant and corroborated at the meeting with the signal to police ii. Felony in presence of officers (credit card fraud) iii. Reasons for foregoing the warrant 1. Plain view 2. Flight risk 3. History and tradition in common law b. Why get warrants? i. Strengthen case ii. Practicality ii. Arrests without a warrant for misdemeanor-fine only offense (Bright-Line Rule) 1. No arrest warrant required where misdemeanor is committed in the presence of an officer a. These are rare cases that won't happen often b. Officers need bright line, clear rules so officers can understand and follow 2. AtwaterTexas law allowed arrest without warrant for violation of seatbelt law, pulled over for no seat belt, then arrested, jailed, bailed, pled guilty, paid fine, and then sued under 1983 for violating her Fourth Amendment rights. argues unreasonable seizureif BIG misdemeanor, officer needs PC and in presence for warrantless arrest. If LITTLE misdemeanor, officer cannot arrest without a warrant. HELD: reasonable to arrest without warrant for misdemeanor committed in presence of the officer. 3. DissentRule should be a balance of government interests with private interests a. Extent of the intrusion v. government interest iii. Arrests at the Home (Bright-line rule) 1. Arrest at the residence of a person requires a warrant AND 2. Reason to believe the suspect is there (not probable cause) a. Presumption in favor of reason to believe b. Can be rebutted 7

3. Exigent circumstancesno requirement of an arrest warrant a. Fleeing felon escapes into home = no warrant requirement 4. In the home a. Inside door and opened voluntarily = warrant requirement b. Outside of the door and opened voluntarily = no warrant requirement 5. Paytonpolice went to Payton's home based on probable cause to believe he had murdered someone; they had no warrant; they entered and found a gun but not Payton. HELD: arrest warrant was required 6. Hierarchy a. Home b. Apartment c. Hotel Arrest warrant will not be required as you move down d. Office e. Public 7. Federal Rule of Criminal Procedure 4 a. Arrest standardprobable cause to believe committed a crime i. Arrest warrant issued OR ii. Summons where no arrest is made iv. Procedure after Warrantless Arrest 1. Due process requires that have a probable cause determination after his arrest (flexibility and specificity) a. Probable cause determination must be made within 48 hours of the arrest i. If so, the determination is presumed constitutional ii. It is the 's burden to prove otherwise 1. Show that no delay was necessary 2. Show that they tried to collect evidence within that time b. If probable cause determination is made outside of the 48 hour limit i. The determination is presumed unconstitutional ii. It is the government's burden to prove otherwise 1. Show that there was no way to get them a hearing within 48 hours c. Where evidence is obtained within the 48 hour span (exconfession) BUT government fails to give a hearing within 48 hours i. The evidence obtained within the 48 hour span is NOT suppressed UNLESS the delay caused the evidence to be obtained 2. Riverside v. McLaughlinlocal policy allowed for PC hearing to be conducted up to seven days after arrest. Class action challenged the policy. Lower court held that determination must be made ASAPright after booking in every case. Supreme Court reversedthat would be a fiscal burden on local government. Articulated the above rule. v. Stop and Frisk (Terry Stop)Terry was one of three hoodlums casing a joint suspiciously. Officer McFadden was an experienced copwalks over to the three; without a warrant, he stops, frisks for weapons, and finds a gun on Terry. Held: reasonable 1. STOP AND FRISK STANDARD a. (Stop) Reasonable suspicion that criminal activity is afoot i. Reasonably prudent police officer with his/her experience ii. Point to specific and articulable facts that justify the stop 1. Connection between officer's experience and facts present iii. Free to leave standard 8

If is free to leave, only an encounter has occurredthus, no Fourth Amendment problem (see below) b. (Frisk) Reasonable suspicion that poses danger to officer i. Pat down for weapons ii. Search for safety of the officer NOT for evidence of a crime 2. Stop and Frisk after tip from Informant: Adamsinformant tells officer " has gun and drugs" in a violent neighborhood; Officer reaches in 's car and finds gun. HELD: reasonable stop and frisk a. Stop and frisk standard is satisfied if an informant gives officer a tip about a . BUT COMPARE 3. Stop and Frisk after anonymous caller: Florida v. J.Lanonymous informer tells police a black male with a plaid shirt is carrying a gun BUT there is no information on the reliability and veracity. HELD: unreasonable stop and frisk because a. There was NO suspicious activity (As in Adams, i.e., high crime area) b. No corroboration to the information received from the caller c. Police argued the "gun exception" anytime there is any reason to believe a person has a gun, there should be an automatic stop and frisk because that is based on safety. HOWEVER d. There is no justification for an automatic rule 4. Stop and Frisk by officer for Moving Violation (traffic stop): Mimsofficer pulls over and tells him to get out of the car; frisks and finds weapon. HELD: reasonable stop and frisk a. To stop car, must have reasonable suspicion of a traffic violation b. To search driver, must have reasonable suspicion of danger c. Usually, stop and frisk can be justified in patrol stops i. Once the stop is legal, a pat down generally follows 5. Encounters a. If there is a reasonable belief that the person is not "free to leave" then a stop has occurred and the Fourth Amendment has been triggered (totality of the circumstances) i. MendenhallDEA asks to give them his ticket, they give it back, they ask to go to office and get consent to search his bags. HELD: mere encounter, not a stop because could leave at any time ii. RoyerDEA asks for ticket, does not give ticket back, tells he is suspected for drugs, tells "come with us" they get consent to search his bags. HELD: stop, not an encounter because actions of officers had the practical effect of preventing from leavingtook his luggage, ticket, and license b. INS cases i. Factory sweeps 1. Argument is that aliens do not have reasonable belief that they are free to leave BUT the court has held that they are free to leave ii. Working the busses 1. Same as above c. Courts tend to favor police in this area 6. Profiling a. Supplements experience to officers who do not have expertisegives knowledge of the experts to nonexperts b. May be used to justify a stop and frisk 9 1.

vi. Search Incident to Arrest: Chimel v. Californiaarrest warrant for at home; after arrest, they search his entire house for evidence of coin shop robbery. Held: invalid search 1. Standard for search incident to arrest a. After arrest, officer can search area within the arrestee's immediate physical control (grab area and the person) i. Grab areabroader than your person but narrower than your "legal" control (e.g., not your legal property rights, etc but your immediate physical control) 1. Weapons 2. Evidence ii. Determined at the time of the arrest 1. Exofficer goes to arrest suspect, suspect reaches for cabinet, before he reaches cabinet, officer arrests, cuffs, and takes suspect away. Officer can return to the grab area and search cabinet. iii. Rationale 1. Officer safety AND 2. Prevent destruction of evidence 2. Securing the premises a. Permissible to search for safety NOT b. Production of evidence 3. Search incident to arrest applied to automobiles: (Bright-Line Rule) NY v. Belton Four s stopped in car; officer orders everyone out after smelling pot; officer searches interior of car, finds jacket, opens pocket, and finds cocaine. HELD: Reasonable search incident to arrest. a. After arrest, officer can automatically search interior of car and any containers therein i. Any part of the car that is reachable from the interior 1. Not the trunk ii. Hatchbackas long as air can pass through iii. Panelsas long as no damage is done b. Containers i. Any object capable of holding another object c. If arrested in the car = search in the car d. If arrested while about to get in car = probably can search in the car e. If arrested while walking near the car = probably cannot search the car 4. Search incident to issuance of a ticket: Knowlesofficer pulls over and issues ticket; then searches vehicle. Officer argues that automatic search after issuance of ticket. HELD: no automatic search of interior because the justification for search incident to arrest (protect officer and prevent destruction of evidence) doesn't apply to issuing traffic citation a. Police officers must arrest if they want to search the interior of automobiles 5. Search after patrol stop: Whrenpatrol stop in a high crime area; officer follows suspicious car; car violates traffic law; officer pulls over and finds cocaine. argued that no reasonable officer would have pulled s over and therefore it was a pretext to investigate s. HELD: search was reasonable a. Once there is probable cause to believe a person has committed a moving violation, officer can pull over the car and proceed from there 10

vii. Plain View Doctrine (Exception to the Warrant Requirement for Seizures) 1. Elements a. Police must be in the area lawfully AND b. Incriminating character of the evidence in plain view is "immediate" i. In other words, police have probable cause that the evidence in their plain view at the time of the seizure is evidence of a crime 2. HortonPolice had probable cause for proceeds of jewelry robbery and weapons used there; Warrant authorized seizure of proceeds only; officers knew they were looking for weapons; did not find proceeds but found weapons. HELD: Plain View doctrine justified the seizure of the weapons regardless if the officers did not inadvertently find the evidence a. Arguments against Plain View Doctrine i. Evidence must be inadvertently discovered ii. Otherwise, plain view will sanction general warrants because no particularity in the warrant will be required AND the doctrine can be manipulated 3. Hicksofficer entered run-down apartment and saw a very expensive stereo; picked up stereo; looked at serial #; called it in, found out it was stolen, and seized it. HELD: illegal search of the stereo and thus the seizure of the store was fruit of illegal search: suppressed. a. Police MUST have probable cause to size something in plain view BEFORE it is seized, not after it is examined 4. Variations of the Plain View Doctrine a. Plain touch (Similar to Terry Stop and Frisk) i. Police must be lawfully conducting a stop and frisk AND ii. If PC is established during such frisk, Police may seize the article UNLESS iii. The frisk is grossly probing 1. There is a reasonable expectation of privacy in a Terry frisk against the police continue to feel around on the person once when no weapons are found iv. DickersonPolice stopped and frisked ; police found no weapons, but felt a "pea-shaped object" in the pocket; felt it some more, pulled it out, and it was crack-cocaine. HELD: unlawful b. Plain Smell? i. Smelling Pot, opium, etc. leads to probable cause c. Plain Hearing? i. Examplebomb ticking (9/11) viii. Automobiles and Movables 1. Automobile Exception: Elements (Carroll Doctrine) a. Probable Cause to believe there is evidence of criminal activity in the car AND b. Exigent circumstancesFederal: car is automatic exigencyPA: car is not automaticmore exigency is required i. Car has mobilityevidence is on wheels 1. Threat of destruction of evidence and escape ii. Carroll1921, prohibitionsearch of a car in Michigan at a roadblock car is stopped based on prior contacts with these particular s. HELD: no warrant required 11

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Search of automobile in police custody without a warrantChambersrobbery of service station; employees tell police s had green shirt and trench coat and description of car; officer pull over s shortly after, arrests, seizes car, takes to station, then searched the whole car without a warrant. HELD: no warrant required a. Since there is no difference, as far as privacy concerns go, between (1) seizing the car and waiting for the warrant and (2) searching the inside of the car without a warrant, no warrant is required b. Argument against (not the law) i. No exigency because police already have custody AND there is time to get a warrant ii. Where the car is on the road, there is exigency iii. Where a car is in police custody, there is no exigency iv. There IS a difference between stopping and waiting for the warrant AND searching without a warrant c. Some courts (probably state) require ACTUAL exigency What is a vehicle subject to the exception? a. Cars b. Airplanes c. Motor Homes? d. House Boats? Diminished expectation of PrivacyCarneymini-motor home; no warrant a. People have a diminished expectation of privacy in their cars i. Cars are open by nature (windows, etc.) ii. Cars are pervasively regulated iii. Distinguished domestic living in the home with transportation: car is used to transport; home is used to dwell and live Movables a. Argument: Movables are subject to the same exception as cars because they are movable BUT b. The court has continuously held that the car exception does NOT apply to movables i. People have a higher expectation of privacy in movables than car Movables within Automobiles: CONTAINERS a. To search an automobile, police need probable cause b. To search a container, police need probable cause and a warrant i. Police can seize the container until a warrant is obtained ii. HOWEVER, what if a container is IN the car? Which rule applies? c. Test for containers within the car i. Police can search containers within the car without a warrant if they have probable cause to believe that there is evidence in the container 1. Police have probable cause to search the vehicle 2. Container is found within the interior a. Anywhere reachable from inside the car (not closed trunk) 3. Container can be searched without a warrant if there is PC to believe the container has evidence ii. Always look for reasonable execution of the warrant 1. exampleif police search interior of car for a brown paper bag in which they have PC to believe evidence is contained 12

therein, if they find another suitcase and search that, it may be an unreasonable search Warrant Requirement No warrant required Probable Cause Scope Timing

Search Incident to Arrest Automobile Exception Inventory Search

Probable Cause Arrest

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Interior of Car (Not in the Trunk) Entire car where evidence could be found Entire Car where property could be found pursuant to neutral and universal police procedures

No Warrant

No Warrant Required

Probable Cause to Believe that Evidence is in the Car No PC required: permissible if police carry out caretaking functions

At arrest or a reasonable time thereafter Can be searched at a later time than search incident to arrest Any time after property lawfully taken

ix. Exigent Circumstances 1. Escape a. Hot pursuit i. If suspect flees to home, police can enter as an exception to the warrant requirement 1. search for the person AND 2. any weapons in the home (safety issues) b. Test is totality of the circumstances to determine reasonableness 2. Endanger (Public Safety) a. Police do not need a warrant to search/seize if protecting the public or other officers from harm i. Police need an adequate basis to justify the emergency situation 1. examplesfirefighters rushing in to save a cat from burning 3. Evidence (Usually Drugs) a. Drugs i. Totality of the circumstances 1. Type of evidence 2. Mobility 3. Who's the suspect a. Do police have prior knowledge of 's criminality b. Crime Scene i. Consent usually comes first (i.e., someone calls the police and lets them in to the scene of the crime) ii. Initial entry = no warrant requirement BUT iii. Police must get a warrant at some point 1. Usually, once the police conduct preliminary investigation, and everyone leaves, when police return, they need a warrant c. Where Police Forbid Entry While They Obtain a Warrant i. McArthurpolice did not allow entry into the 's home while they obtained a warrant unless was with a police escort. Lasted two hours. HELD: reasonable seizure of person and reasonable constructive seizure of premises 13

x. Administrative Searches 1. Former Test: a. Warrant AND b. Reasonable Justification 2. Current Test a. Totality of the circumstances AND b. No warrant requirement i. Special needs ii. Purpose of the search iii. Method of the search 1. Reasonableness: balancing private and public interests xi. Special Needs 1. Reasonable individualized suspicion test for search of student in school a. Balance i. School interests ii. Student interests 1. Both determine the reasonable execution of the search a. Least intrusive means utilized 2. Balancing Test for Suspicionless drug testing (Skinner and Von Raab) a. Government Interests b. Individual Privacy i. Diminished expectation of privacy ii. Assumption of risk of being subject to search xii. Roadblocks 1. Test: Primary purpose test a. PURPOSE: Primarily enforcing public safety, not criminal law, therefore no warrant and probable cause requirements i. Balance government interests with private interests ii. Reasonable Execution 1. Police policy must take away discretion from police officers a. Examplecheck every third car 2. Level of Intrusion a. ExampleFrightening individuals with masked police officers b. Mixed motives are permitted (Merrit) i. Example: sobriety checkpoint AND drug sniffing dogs c. Pretextual Roadblocks may not be permitted (Huguenin) i. Sign stated that roadblock was one mile ahead but was actually on the off ramp right after the sign d. Drug checkpoint alone is not permitted because primary purpose is not public safety but enforcing criminal law (Edmond) i. When enforcing criminal law, traditional 4th amendment principles apply 1. Distinguish between specific crimes and general crimes

1. Reasonable because time and scope was limited 2. Souter (Concurring): police were actually more protective because they obtained a warrant when all they could have done was searched based on exigency

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Specific Crimefleeing felon, roadblock set up, no warrant or PC required because protecting public from potential danger

xiii. Inventory Searches 1. Test a. Property is lawfully taken into custody AND b. Inventory search carried out for caretaking functions pursuant to neutral guidelines or universal practice i. Protect police officers ii. Protect owner of property iii. Avoid police liability 2. Containers a. Same test as above b. What if the container is seized without a warrantcan the police conduct an inventory search? i. Argument against inventory search 1. Purpose of inventory search is not present ii. Argument in favor of inventory search 1. It does not make sense to search everything except the item that includes the evidence c. Check the purpose of the search i. Caretaking function or search for evidence 3. Inventory of Person a. Empty pockets, etc. for caretaking purposes NOT search for evidence xiv. Consent (exception to the warrant AND probable cause requirements for a search)] 1. Test a. Consent voluntarily given under the totality of the circumstances i. Compare Waiver of Right with General Voluntariness 1. Waiver a. Knowingly and voluntarily relinquishing rights (Brightline rule) ii. Factors to consider 1. Warning 2. Officer conduct 3. Suspect's intelligence 4. Custody 5. Tone of voice 6. Suspect's belief police will not find anything 7. OTHERS b. No warning required c. Must be reasonable 2. Issues a. Consent Denied? i. Find another exception b. Threats? i. Argumentthreat takes away suspect's option c. Godfather Deal? i. Officer makes a deal to obtain consent ("I'm gonna make an offer he can't refuse Marlon Brando, The Godfather). d. Road Stop 15

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i. No requirement that officer must tell detainee they are free to leave 3. Third Party Consentapply agency law xv. Undercover Operations 1. Tape Recording while talked with officer a. Consensual conversation, therefore no search i. Since officer could testify about the conversation, the conversation was consensual, and the tape recording merely preserves that conversation, tape recording is not a search 2. Tape recording while talked with undercover officer a. Consensual conversation, therefore no search 3. There is no search when a private party buys drugs from 's house and turns the evidence over to the DA a. No state action AND consented anyway 4. Officer goes to buy drugs as a private person and turns over to DA a. Arguably no state action because officer was acting in his private capacity AND consented anyway 5. Officer goes to buy drugs as an undercover officer a. State action BUT consented anyway 6. Scope of consent limits undercover officer's ability to search xvi. Wiretapping and Electronic Surveillance 1. Title III a. Warrant requirement i. Officer needs approval from chief law enforcement officer before seeking judicially issued warrant b. Warrant will not issue to conduct wiretapping if there are other means of investigation available i. Wiretapping is usually last resort Exclusionary Rule i. Introduction 1. Procedural Remedy rather than substantive remedy 2. Violation of Fourth Amendment results in excluding evidence obtained by the violation ii. History 1. Prior to Weeks, who had their Fourth Amendment rights violated had to sue the police for trespass, replevin, etc. 2. WeeksReasons for the Exclusionary Rule a. Deter officers from violating the Constitution i. Prospective Deterrence ii. NOT rooted in Constitution, only ENFORCEMENT of Constitution b. Government Should not benefit from its own wrongful conduct i. Moral Justification based on policy from a practical standpoint c. Where there's a right there is a remedy d. Judicial Integrity e. Administrability i. Consistent Application of the Rule iii. Although the Fourth Amendment applied to the federal government and the states, the exclusionary rule applied ONLY to the federal government. 1. Why a. should not avoid consequences of own illegal conduct 16

b. Practicalityprevents justice from being done in most extreme cases c. FederalismTenth Amendment d. Administrability 2. Wolf"Silver Platter Doctrine" a. If the feds illegally searched and seized and obtained evidence, they would be unable to use it in court. b. As a result, the feds would hand over the case to the state on a "silver platter" and the state could then prosecute without exclusionary rule applicability iv. Modern Law 1. Mapp v. Ohio extends the exclusionary rule to apply to the states a. Deterrence i. Constitution requires THIS remedy because it is the ONLY remedy that prevents government from gaining by its own misconduct b. Judicial Integrity i. Court should not be promoting illegality or sanctioning violations of the Fourth Amendmentif no exclusionary rule, court would be doing so c. Invasion of Privacy i. Court should not allow the continuing invasion of the Fourth Amendment ii. If prosecutors can use the evidence at trial, prosecutors CONTINUE to invade the privacy of others AFTER the Fourth Amendment has been violated iii. Exclusionary Rule requires the prosecution to give the property back 2. Rule 12(b) Pretrial Motions in Criminal Procedure a. Rule 12(b)(3) provides a motion to suppress evidence illegally obtained h. Standing i. Substantive Fourth Amendment Law 1. TEST a. Whether at issue had a legitimate expectation of privacy in the place searched OR b. Whether has an individual property OR possessory interest in the thing seized c. Legitimately on PremisesLimited Application i. If exercises CONTROL or AUTHORITY over the place searched 1. Totality Test a. Relationship between and owner b. How much time spent at the place searched c. Food, sleeping bag, pillow, other stuff brought to the place searched 2. RakasRakas passenger in car. Officer stops car, searches car, finds and seizes bullets and shotgun, officer arrests suspects. a. argues i. He had a REOP in the car ii. Target Theory 1. Target of the search automatically has standing iii. Legitimately on the premises (car) b. HELD: no REOP in car b/c car by nature is diminished privacy i. Target theory rejected 17

ii. Legitimately on premises test narrowly applied to the home AND those who exercise CONTROL or AUTHORITY over the place searched 1. was only a passenger, not operator of vehicle iii. did not have standing for the stop and search of the car iv. did have standing to challenge seizure of gun and shells BUT 1. Plain View Exception applies a. Search was presumed legal b. Plain view allowed seizure ii. Causation: Fruits of the Search 1. Introduction a. Illegal search causes the seizure of items b. Illegal arrest causes the confession i. If an arrest is illegal, the is NOT excused from prosecution 2. TEST a. But-for the illegality, the evidence would not have been obtained AND b. Illegality was the proximate cause of the evidence being obtained i. Miranda warnings do NOT cure illegality (Brown) ii. Independent free will of OR intervening event might break the chain of causation 1. Look at facts of each case: time, place, type of crime, type of defendant, Miranda warnings, etc. c. Case Law i. Brownunlawful arrest search incident to arrest officer takes to station an hour later, confesses after Miranda warnings seven hours later, again confesses after Miranda warnings and is later convicted. 1. Prosecution argues that confessed under his own free will because he was administered his Miranda warnings 2. argues "but for" the unlawful arrest, there would be no confession 3. HELD: There was no intervening act that broke the chain of causation: first statement given within 2 hours of unlawful arrest tainted second statement and thus was NOT product of own free will ii. Wong Sun implicated by Toy, who was illegally arrested. After seven days, an arraignment, and release on own recognizance, confessed. 1. HELD: acted under his own free will 3. Exceptions: Even if a violation of the Fourth Amendment occurs: a. Independent Source Doctrine i. If the search and seizure was INDEPENDENT from any violation of the Fourth Amendment, the evidence is admissible ii. MurrayFBI surveillance of warehouse see truck leave arrest drivers and passengers, search car, and find pot officers go back to warehouse and search w/o warrant (illegal) and find pot bails of pot but do not search further they get a warrant and use the truck arrest as evidence of PC, NOT the w'less search 1. HELD: evidence obtained was independent of the illegal search because 18

i.

Good Faith i. Evidence should not be suppressed IF 1. Officers reasonably rely on a seemingly valid warrant issued by a neutral magistrate 2. Limitation a. Police cannot use false information in the warrant b. Police must have probable cause, not just conclusory statements ii. United States v. LeonPolice investigate drug case and develop information about ; police believed that there was probable cause; police go to magistrate and get warrant; magistrate found probable cause, but trial court suppressed because they found no probable cause 1. HELD: suppression was inappropriate a. Weigh the costs and benefits of preventing the use of the evidence obtained by officer who reasonably relies on neutral magistrate i. Degree of government misconduct low ii. Police acted reasonably, magistrate made mistakes iii. Deter ONLY police misconduct AND supervise magistrate

Warrant did not mention anything about the illegal search b. PC based on other facts iii. Compare Madrid with Murrayevidence during grossly invasive illegal search was used to establish probable cause for the search warrant 1. HELD: evidence obtained was suppressed a. Grossly intrusive police behavior b. Officers chose to use illegally obtained evidence in warrant application iv. Problems with Independent Source Doctrine 1. Opens the door to confirmatory searches a. Confirmatory search without a warrant will tell police whether they need a warrant or not BUT b. In practice, police don't do this because they do not try to violate the Fourth Amendment b. Inevitable Discovery Doctrine i. If the evidence would have INEVITABLY been discovered absent the violation of the Fourth Amendment, the evidence is admissible 1. Inevitably means inevitably (pretty damn sure) would have been discovered a. Show by a preponderance of the evidence that the officers were already searching for the evidence in the area where the evidence was b. Must inevitably discover evidence that links the suspect to the crime ii. Nix v. Williamsillegal confession discovery of dead body police called off search and went to where said body was to obtain evidence 1. HELD: police successful in showing by a preponderance of the evidence that the body would have inevitably been discovered a. Police were already looking b. Confession merely called off the search c. What police were doing would have found the body, and on the body, evidence linking to crime

a.

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iii. Massachusetts v. Sheppardpolice used a form-warrant for controlled substances rather than a warrant for a murder case; magistrate told police he would fix the warrant/cross out information relating to controlled substances warrant allowed police to look for controlled substances EVEN THOUGH there was no probable cause for controlled substances 1. HELD: evidence should not be suppressed because the officers could reasonably rely on the magistrate AND the magistrate made the error of failing to cure the warrant relating to controlled substances iv. Some states reject the good faith exception in Leon III. FIFTH AMENDMENT a. No person shall be compelled in a criminal case to be a witness against himself i. "Person" 1. Individual/Personal Right 2. One CANNOT rely on the Fifth Amendment for other people a. Examplelawyer cannot claim fifth amendment for client 3. Privilege does NOT extend to corporations, partnerships, or other types of legal business entities EXCEPT a. SOLE proprietorships ii. "Compelled" 1. Voluntariness or involuntariness iii. "Witness against himself" 1. Testimonial Evidence is Protected a. Determined by whether the words spoken could punish for truth, falsity, or silence b. Munizpolice forced to talk and answer questions while he was drunk; at trial officer testified about content of answers and slurred speech as proof that he was drunk i. HELD: fifth amendment was violated because manner of speech and choice of words were used against 2. Non-testimonial evidence is NOT protected by the privilege a. DNA, photo lineup, fingerprints, handwriting samples, blood, speech comparisons b. Voice/Speech Comparisons i. Probative effect must be the comparison, NOT the actual words spoken iv. "Criminal Case" is broad 1. Fifth Amendment applies in any proceeding that is potentially preliminary to a future criminal case a. Silence cannot be used as evidence against in a criminal case BUT b. Silence CAN be used as evidence against in a CIVIL case i. Fact finder can draw "any reasonable inference" from the 's silence in a civil case c. Why in seemingly non-criminal cases? Avoid the cruel trilemma: 's only options ARE i. Default in civil action by confessing ii. Confession in civil action would incriminate of a crime OR iii. If lies about it to avoid criminal culpability, will commit perjury 2. Examples a. Criminal Trial 20

b. Grand Jury Investigation c. Asset forfeitures i. Civil or criminal (under the statute) 3. Other Examples where not clearly a criminal case a. Investigatory Congressional Hearings b. Civil action where criminal case is pending on same facts 4. Where no criminal case can result a. Either because past case OR b. Statute of limitations has lapsed OR c. acquitted OR d. Immunity (See below) v. "Against Himself" 1. Immunitytakes away Fifth Amendment Privilege because they will no longer be testifying "against themselves" a. Transactional Immunity i. Cannot be prosecuted for the alleged crime EVER b. Use or Derivative Immunity i. CAN be prosecuted for the alleged crime BUT the compelled testimony CANNOT be used against them b. Confessions and Due Process i. Due Process Clause of Fifth Amendment used to exclude involuntary confessions ii. TEST: Whether, under the Totality of the Circumstances, the voluntarily confessed 1. Spanoimmigrant with junior high school education interrogated for many hours, some interrogation by police officer friend; friend played pity on to make him confess; police did not allow to see his lawyer; then gave statement a. HELD: statement was involuntary iii. False Documentary Evidence is per se impermissible iv. Promises of Consideration by Police 1. See if police have authority to give leniency (which only prosecutors can) 2. Reasonableness of leniency v. Police misconduct controls, not the suspect's state of mind 1. Connelly heard voices that told suspect to confess; police did nothing coercive a. HELD: state action at issue because police must coerce suspect c. Self-Incrimination Clause in Police Interrogations: Miranda v. Arizona i. Introduction 1. Police must advise a suspect of his rights a. Right to remain silent i. Fifth amendment self-incrimination clause b. Anything said can and will be used against you in court i. Not a right, but a law of evidence ii. States consequences of failing to remain silent c. Right to the presence of an attorney during questioning d. Right to have an attorney appointed if you cannot afford one i. First three are MANDATORY ii. If police KNOW you can afford an attorney, they need not ask you 2. When Given a. Custodial Interrogation 3. To Whom a. EVERYONE 4. Purpose of administering Miranda Warnings 21

a. Advise every suspect of rights b. Assure waiver of rights is voluntary c. Put every suspect on a level playing field with the police, since interrogation is an inherently coercive atmosphere ii. Miranda warnings MUST be given before "custodial interrogations" 1. Custody TEST: a. Whether, under the totality of the circumstances, the suspect has been deprived of his freedom of action in any significant way i. Where person being questioned believes that he or she is free to leave, there is NO "custodial" interrogation (Stansbury) b. Arrest is generally custody c. Interrogation at the police station is generally custody UNLESS they are voluntarily there and can leave at any time (see above) d. Terry Stops are NOT custody e. Case law i. Orosco was in custody where arrested and questioned in home by four officers at 4:00 a.m. in the morning ii. Beckwith was NOT in custody where IRS agents invited into home at 8:00 and questioned at the dinner table iii. Matthiason was NOT in custody where questioned in police station since voluntarily went to station, informed that he was not under arrest, and left station after he made a confession iv. 2. Interrogation TEST: a. Express questioning i. Even if direct question, if it's an exclamation it might not be interrogation (example: what the hell's going on here!?) OR b. Functional equivalent of express questioning i. Any words and/or police actions ii. Police should know iii. Is reasonably likely to elicit an incriminating response from THIS suspect 1. Intention of police not dispositive, but relevant 2. Use facts about THIS suspect and compare to what police should know c. Case Law i. InnisNo "interrogation" where shotgun killer arrested; asks to see lawyer; officers talk to each other about how awful it would be if child finds missing shotgun; then told them where to find gun iii. Exceptions to Miranda 1. Public Safety/Emergency Exception a. TEST: Totality of the Circumstances i. Danger to the public safety outweighs the 's Fifth Amendment right ii. More compulsion is generally tolerated in such circumstances although not freely admitted by the court b. NY v. Quarles: officer says "where's the gun" immediately after an arrest; no warnings given, found gun and used in court

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i. HELD: officer did not need to administer Miranda even though was in custody (pointed gun at and was arrested) AND interrogated (express question: where's the gun?) c. Carilloofficer says "any weapons or needles on you?" and responds "I don't use drugs, I sell them." Apart from being a complete knucklehead, was arrested and convicted. i. HELD: public safety exception applied because officer safety at issue iv. Waiver of Miranda Rights 1. TEST: Knowing AND voluntarily waiver of rights a. Knowing i. Full awareness of nature of the right AND consequences of abandoning such right b. Voluntary i. Product of a free and deliberate choice c. FOCUS is on the SUSPECT d. Silence is NOT enough to constitute a valid waiver 2. Case Law a. Connecticut v. Barrettwaiver valid where would not give written confession but would give oral confession b. Changing the Subjectwaiver valid if agrees to speak about X but not about Y so long as police ask about X only c. Elstadwaiver valid even though police obtained defective confession but later obtained valid confession d. Moranwaiver valid even though lawyer was trying to reach , but did not know lawyer was trying to reach him i. Unless the client asks for an attorney, attorney has no right of access to his client 3. Waiver AFTER Invocation of Miranda Rights a. TEST: police must "scrupulously honor" 's invocation of Miranda rights under the totality of the circumstances i. Time ii. New Set of Warnings iii. Repeated Attempts (did you changer your mind yet?) b. When Right to Silence is Invoked i. Police may continue to interrogate UNTIL makes an express, unequivocal statement that the right to silence is being invoked c. When Right to Counsel is Invoked i. Once right to attorney is invoked, police MUST stop interrogation UNLESS 1. Communication is initiated by the suspect ii. WHY 1. Invoking the right to counsel does not make counsel magically appear at that instantattorney must be contacted, arrive, and participate while is questions 2. Right to Counsel is a higher right than the right to remain silent

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IV.

V.

IDENTIFICATIONS a. Right to Counsel for Identifications i. Right to counsel attaches when formal charges are brought ii. A valid police lineup after formal charges have been brought against the accused requires the presence and participation of accused's counsel (Bright-Line) 1. Lineups are a "critical stage" of the proceedings 2. Minimizes the chance for "suggestive" lineups iii. Since the Sixth Amendment does NOT attach until formal charges have been brought, the court conducts a balancing test to determine whether the identification was unreasonably suggestive (Totality Test) 1. Balance the benefit to the individual in having counsel present WITH 2. Burden on society to have counsel present at this identification a. Examples i. Practical mattersare we going to have counsel for every street ID ii. Contrast affirmative ID (victim walking up steps in police station, sees suspect, and says, "That's him!") WITH police gathering many individuals and asking victim to choose one (more suggestive) iii. Witnesses congregating and reaching a conclusion together rather than individually iv. Immediacy of circumstancesonly victim about to die iv. Permissible Suggestiveness 1. Early Identification not unreasonable under certain circumstances a. Rationaleinnocent suspect has as much to gain from an early ID as his guilty counterpart (exoneration while fresh in witness' mind) 2. Independent Source a. IF witness is able to ID WITHOUT any suggestiveness but from an independent ability to identify the suspect , the evidence of identification is admissible 3. Photographic Identification a. Attorney is NEVER required at a photographic identification i. Rationalephotos are trustworthy IF they are NOT unduly suggestive SIXTH AMENDMENT a. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for the defense i. The accused in felony cases have a fundamental right to counsel (Gideon v. Wainwright) ii. The accused in misdemeanor cases have the right to counsel (Argersinger) IF benefits of providing counsel outweigh costs to society of providing attorney iii. In other cases, accused has right to an attorney IF 1. Liberty is at stake (imprisonment) BUT NOT 2. If money is at stake (fine) a. PROBLEM i. Trial judge has two choices 1. Appoint counsel and be able to sentence to prison after trial OR 2. Do not appoint counsel and be barred from issuing a prison sentence b. Scope of the Right to Counsel i. Right to Counsel attaches at all "critical stages" of the proceedings 1. Part of the prosecution in which the right to an attorney attaches 24

c.

2. Interests of the accused will be harmed without presence of an attorney a. Formal charges conclusion of trial (generally) ii. Appeals 1. Right to counsel attaches to the appeals "as of right" (after conviction) 2. Right to counsel does NOT attach to discretionary appeals (writ to Supreme Court) iii. Sentencing 1. Right to counsel attaches ONLY IF issues of sentencing are in dispute iv. Parole/Probation 1. Generally considered administrative proceedings, since the trial has concluded 2. HOWEVER, right to counsel will attach in certain cases where the issues presented require the presence and participation of an attorney v. Juvenile Cases 1. Right to counsel attaches under a special circumstances analysisminors are unable to represent themselves vi. Right to Experts 1. If the case requires additional resources, such as experts, to satisfy the requirements for competent representation, the Constitution requires it as well Sixth Amendment also requires the "effective assistance of counsel" i. Reasonably effective assistance 1. Objective reasonableness AND 2. Prejudice to the defendant

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