Table of Contents Federalism .. 3 Theories of Incorporation. 3 Arrest, Search and Seizures (4th Amnd)... 5 Four Questions... 5 Definition of Seizure..

5 Definition of Search... 5 Probable Cause . 5 Definition of Probable Cause.. 5 Requirements for PC.. 5-6 Tips Establishing PC for Warrants 6-7 Reasonable Suspicion ... 7 Definition of RS ... 7 Plainview Doctrine ... 8 Protected Areas 9 Expectation of Privacy ... 9 Definition of EOP .. 9 Curtilage . 10 Electronic Devices . 10 Third Party/Govt Agent .. 11 Warrants on Non-Suspects ... 11 4th Amnd Exclusionary Rule ... 12 ER Good Faith Exception for Warrants .. 12-13 4 Examples of Bad Faith ... 13 Knock & Announce 14 Fruit of the Poisonous Tree ... 14 FOTPT Exceptions 14 ER Exception to Impeach . 14 Standing .. 14-15 Search & Seizure with Warrants .... 16 Search & Seizure with Consent ... 17 Validity of Consent .. 17 Voluntariness 17 Co-Occupant Consent . 18 Warrantless Arrest & Searches of Persons 19 3 Justifications for W/S S/S 19 Search Incident to Arrest Explained.. 19 No Warrant for Arrest in Public Areas . 20 Search Incident to Arrest (Case Law) .... 20 Plainview Doctrine: Subjective v. Objective Reason 20-21 Killing Fleeing Suspects .. 21 Warrantless Search & Seizures of Premises .. 22 Exigent Circumstances ................ 22 Warrant Requirement for the Home . 22 Limitations of SIA in the Home . 22 Exigent Circumstances: Destruction of Evidence 22 Using Technology without a Warrant ... 22-23 Warrantles Search/Seizures of Vehicles and Effects .. 24 Warrant Exception for Cars 24 Search of Containers Found in Cars ... 24 Rationale for Warrant Exception of Cars .. 24-25 SIA of a Vehicle . 25-26 Containers Belonging to Passengers 26 EOP of Passengers . 26 Arrest for Citable Offenses ... 26-27

Stop & Frisk (Reasonable Suspicion . 28 S&F Test .. 28 Do Tips = RS .. 28 Does Running from Cops = RS 28 Length of Seizure Before it Becomes Unlawful .. 28 Seizure of Effects ... 29 Right to Counsel (6th Amdn) .. 30 When RTC is Triggered 30 Indigents . 30 Road to Gideon .. 30-31 RTC Incorporated . 30-31 Appeals 31-32 Police Interrogations & Confessions . 33 Due Process and Voluntariness . 33 When RTC Attaches ... 34-35 7 Values Against Self-Incrimination .. 36 Miranda 36 Miranda Waiver . 37 Custody for Miranda .. 39 Interrogation for Miranda . 39 When Miranda is not Required . 39-40 Waiver After Miranda Has Been Invoked 40 Miranda RTC .. 40 Exceptions to Miranda . 41 Public Safety . 41 No FOTPT for Miranda .. 41-42 2 Interrogations (Only 2nd Is Valid) 42 Knowing & Intelligent Waiver of Miranda 42 Elicitation .. 43

CRIM PRO OUTLINE II. AMERICAN GOVT: 101. FUNDAMENTAL FAIRNESS, FEDERALISM, AND THE STATES AS LABORATORIES: DUE PROCESS A. Background and Debate 1. Bill of Rights: first 10 amendments limit power of federal govt (not the state) against citizens held early on to apply ONLY to fed govt 2. 14th Am.: DP clause important to incorporation issue was to what extent the DP clause incorporated the BoR provisions to restrict state action? B. Theories of Incorporation Summary: FF: DP prohibits state encroachment on the principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental (Palko) TI: DP clause incorporates all of the BoR provisions to states SI: a state is bound by a procedure if such a procedure is necessary to an Anglo-American regime of ordered liberty. (Duncan) 1. Fundamental Fairness (FF) Development: SC rejected idea that DP simply means legally authorized action (that govt was restrained only what was on the books), b/c legislature could just change the laws. a. Palko v Connecticut (1937): got life at trial for M-2; state appealed via statute. Higher court cited errors in lower decision including bad distinction in jury instructions b/w M-1 and M-2, and remanded; on second trial sentenced to death for M-1. argues double-jeopardy clause in 5th A is incorporated in DP. HELD: (context-sensitive) in this case, allowing to be re-tried upon finding of serious errors is not a violation of DP (Court doesnt hold if State would be so proscribed if there were NOT serious errors). ROL: (not really), but reiterates and clarifies FF argument (as below), and also discusses a rival argument, total incorporation (as below) Overruled by: Benton v. Maryland b. The FF argument: DP neither comprehends the BoR nor is confined to them; DP prohibits state encroachment on the principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental (Palko) 2. Total Incorporation (TI): DP clause incorporates all of the BoR provisions to states. 3. Selective Incorporation (SI) Flaws in FF and TI: FF: 1. unpredictable: a right deemed fundamental today may not be so tomorrow 2. wastes govt resources 3. gives judges too much discretion TI: 1. doesnt make sense textually and why didnt the Founders simply say so? 2. hinders judicial discretion 3. limits DP to whats in the BoR (doesnt recognize implied rights) 4. really clearer and less subjective than FF? BoR language is vague in itself. b. Adamson v CA

Facts: Adamson was convicted of murder. During the trial, the state had commented to the jury on his failure to take the stand. Issue: Whether a states comment at a state criminal trial on the failure of a defendant to take the stand at trial is a violation of the defendants 5th amendment privilege against self-incrimination. Majority Reasoning: Although the 14th amendments due process clause guarantees a right to a fair trial in a state criminal trial, there is no ground under Palko to make the self-incrimination 3

privilege one of the fundamental rights that is incorporated in the 14th amendment and applied to the states. Overruled by: Griffin v. California

c. Duncan v Lousisiana: 1968: black boy slaps white boy on the elbow. Black boy given trial with no jury. Issue: Is the 6th Amend. Right to a jury trial incorporated to the states via the 14th Amend.? Yes. The test under SI: whether given this kind of system a particular procedure is fundamentalwhether, that is, a procedure is necessary to an Anglo-American regime of ordered liberty. Notes on SI: 1. Sounds in theory like FF, but in practice its like TI (anything in BoR is most likely fundamental to AA regime of ordered liberty) 2. SI applied differently; i.e. if a Right in the BoR is fundamental then the entire provision applies to the Statesincluding all cases that interpret it. In other words, IF a privision applies, it applies EXACLY the same as if it would apply in a federal context. Problems with SI 1. No reason to adopt it 2. Lip service to FF, but everything becomes fundamental 3. Allows administrative convenience to dictate 4. Little attention paid to differences b/w state/fed systems 5. May water down provisions Nevertheless, SI is the approach used today. ROL: trial by jury in criminal cases is fundamental to the Anglo-American scheme of justice, so 14th A guarantees a right to jury trial in all criminal cases (if theyd get a jury were they to be tried in fed. ct.)

IV. ARREST, SEARCH & SEIZURE : 4TH AM. A. THE 4TH AMENDMENT OVERVIEW 1. ANALYSIS: ANSWER THE QS. Q1: WHO WAS DOING THE ALLEGED S/S? MUST BE GOVT. Q2: WAS IT A S/S? IF YES, THEN Q3. THESE ARE THE S/S CASES (KATZ GREENWOOD, RILEY, KARO, ETC.) Q3: WAS THE S/S REASONABLE? IF NO, THEN Q4. YES, THEN FINE.THESE ARE THE PC CASES (SPINELLI, GATES, PRINGLE) & THE RS CASES (TERRY) Q4: IF UNREASONABLE, THEN WHAT? EXCLUSIONARY RULE, OR EXCEPTION? Generally: - s/s w/ warrant presumed reasonable. ( must prove unreasonable) - s/s w/o warrant presumed unreasonable. (Govt must prove reasonable) - Reasonable: common law; 4th Am.; umbrella (DP & EP) Seizure defined: Of Person: -Whenever a police officer accosts an individual and restrains their freedom to walk away. Terry at 222. - Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. Terry, fn. 16 at 222. Of Property: - occurs when there is some meaningful infringement with a persons possessory interests in that property.

When are you seized for 4th Amendment purposes when a reasonable person wouldnt feel free to leave or decline an officers request to answer questions. (Barbri Definition)

Karo at 99. Test: taking into account all of the circumstances surrounding the encounter, would reasonable person feel free to leave? Search defined: 1. that a person has exhibited an actual (subjective) EoP, and 2. that the expectation be one that society is prepared to recognize as reasonable. Katz at 90, Harlan concurrence. In determining whether the s/s were unreasonable, our inquiry is a dual one: terry at 222. 1. whether the officers action was justified at its inception, and 2. whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Two types of people seizures: 1. detentions/interrogations- need RS. 2. Arrests- need PC. 2. The Essence of Liberty and Security a. Boyd v US (1886): Issue: Was the S/S reasonable? (Q3). Invasion of 3 rights: 1. Indefeasible right to Personal Security 2. Private Property 3. Personal Liberty 3. What is PC (PC)? 4th Am: No warrants shall issue, but upon PC Defined A situation where a reasonable police officer, based on training and experience has accumulated evidence indicating that more likely than not, the is committing, or has committed a crime. (Spinelli pg. 128) Reasons for PC:1. Protect the innocent. 2. Protect the criminals. Basic Requirements for PC -PC to arrest For PC to arrest a person to exist, two conclusions must be justified by substantial, trustworthy, evidence: a) That a violation of the law has been committed; and

b) That the person to be arrested committed the violation -PC to search For there to be PC to search particular premises, the conclusions which must be supported by the evidence are: a) That the specific items to be searched for are connected with criminal activity; and b) That these items will be found in the place to be searched. -Arrest vs. Searches The result in each may not be the same in a specific case. An officer might have the PC to arrest a person but not to search. Generally, evidence that would justify a search is apt to become stale sooner than information that is used to justify an arrest. -PC is an objective concept. An officers subjective belief, no matter how sincere, does not constitute in itself PC. However, a court will take into account the specific experiences and expertise of the officer whose actions are under scrutiny. a. Spinelli v US- was charged with crossing state lines with the intent to engage in gambling. Here the affidavit set out four things: -That the FBI had monitored s movements as he had gone over the state line several times and into an apt.; there were two phone lines in the apt; is known as a bookie; a confidential and reliable informant states that is running a booking gig out of the apt. Aguilars Two Prong Test Prongs totally independent of each other each must be met before PC is established: 1. VALIDITY basis of knowledge: The information had to adequately reveal the basis of knowledge of the informant, the particular means by which they came across the information. 2. VERACITY credible or reliable: It had to provide facts sufficiently establishing either the veracity of the affiants informant (credibility), or the reliability of the informants report in this particular case. Held: No PC. Significance SC makes it clear that these two prongs are separate and each must be proven separately. 1. VALIDITY: Basis of Knowledge Prong KEY How did the informant get the information? ROL This prong is satisfied if the informant explicitly states that she personally observed the reported facts. Draper v United States 1959 Informer does not state the way info obtained, but reported had gone to Chicago, by return by train to Denver w/ 3 ounces of heroin. Informer said what would be wearing with minute particularity. Draper Approach The tip described accuses activity in sufficient detail that the magistrate may know that he is relying on something more substantial than casual rumor. Information was so rich in detail that it was reasonable to conclude that he obtained the information first hand. 2. VERACITY: Credibility or Reliability KEY Evidence is required to demonstrate that informer is a credible person (credibility) or in the alternative, that her information is reliable (reliability). Corroboration A tipsters information that would not otherwise satisfy the 2 pronged test (i.e. anonymous tip) may be considered regardless. The benchmark is Draper. b. Illinois v Gates : Overturns Spinelli. SC switches to TOC APPROACH: finding that veracity and validity are closely intertwined. 1983 Anonymous tip by letter that H would go to FLA and drive back to CHI with weed. Letter says W drives to FL then flies back. Police see H goes to FL; Police get warrant b4 he even comes back to CHI. Also, not all the info in the tip was correct. (the tip said that the wife would fly back from Florida, while in fact she drove back with her husband). TOC vs 2-Pronged The reliability of the informants report and the basis of his knowledge are only considerations that go to the TOC but these elements are neither fatal nor sufficient

in and of themselves. All that is required of an affidavit is that all the allegations, taken together, permit the magistrate to make a common sense evaluation of the PC. Rule A warrant may be issued based on affidavits that are entirely hearsay if the affidavit shows by the TOC that there is a fair probability that contraband or evidence of the crime will be found in the particular case. Rationale: a. Warrants issued by magistrates who are neither lawyers nor judges. b. Affidavits drafted by non lawyers who may not know legal subtleties. NOTE Court indicates that anonymous note by itself is not sufficient. Note + corroboration = PC. What is PC? In FN 13, Court says requires only a probability or substantial chance of criminal activity; not an actual showing of such activity. c. MD v Pringle: RS establishes PC. F: 4 arrested after cocaine found in back armrest, wad of $ in glove compartment. None of those in car would say whose it was, all arrested. H: PC requires a reasonably particularized ground for belief of s guilt. There was a reasonable inference that any or all of the men had knowledge, dominion or control of the drugs. Officer had PC. 4. What is Reasonable Suspicion? RS Defined: There is a substantial possibility that a crime has been or is about to be committed and that the suspect is the person who committed or is planning the offense. RS is individualized suspicion short of the PC needed for arrest. (fn. a in Robinson, p.152) a. Terry Overview Significance of Terry: 1. Reasonableness Balancing Now Used in Reasonableness of S/S Provides a framework for a move to the proposition the appropriate test of police conduct is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. 2. S/S can vary in intrusiveness. Court no longer treats all searches alike. 3. Wide Array of S/S may not be conducted that are less than ordinarily intrusive on the basis of a lesser standard of cause than PC. New standard of RS. 4. Some intrusive searches are now permissible on the basis of the lesser standard of RS. 5. SC applied reasonableness balancing to hold some S/S of persons may be conducted without individual suspicion of any kind. b. Terry v Ohio 1968 O with 39 years of experience became thoroughly suspicious when he observed two men walking back and forth repeatedly in front of store, peering in. O approached the suspects, identified himself as a cop, asked for their names, and when he received only a mumbled reply, he grabbed one of them, D, spun him around, and patted the outside of his clothing. O felt a pistol in the breast pocked of s overcoat, pulled it out, and arrested him for carrying a concealed weapon. At the time of the pat down, O lacked PC to either to arrest or to search. Issue Whether in all the circumstances, s right to personal security was violated by an unreasonable S/S? Balancing test: nature and extent of government interest justifying intrusion vs. privacy interest of citizen. Analysis Balance a. Government interest 1. General crime prevention & detection. 2. Officer safety. Court says this is the crux of the case. Immediate legitimate interest that was not armed with a weapon that could be fatally used against him. b. Intrusion A protective search for weapons is a brief intrusion upon the sanctity of the person, though far from inconsiderable intrusion. Must officer be certain individual is armed? NO. Issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

ROL No PC necessary to S&F for weapons. Just need RS that is armed and dangerous individual. Held Where O observes unusual conduct which leads him to conclude that criminal activity might be afoot and may be armed and presently dangerous, O can investigate and identify himself as an O and make reasonable inquiries and if nothing dispels his reasonable fear, he is entitled for the protection of himself and others to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons. Central Inquiry The reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. Objective Test Officer must be able to point to specific and articulable facts which, taken together with rational inferencesreasonably warrant that intrusion. Facts are judged by an objective standard. Methodology of Inquiry (Q3) 1. Is the officers STOP justified? 2. Is the stop reasonably related in scope to the circumstances which justified the interference? Once Officer Has RS Officer has constitutional authority to ascertain whether the person in fact is armed and, if he is, to disarm him. SCOPE of the Frisk A carefully limited search of the outer clothing of such persons in an attempt to discover weapons. The purpose and scope of the Terry search is limited: to determine whether the suspect is armed KEY POINTS 1. Officer only gets RS after confronting and investigation further. 2. The purpose of the search is protection of himself & public, not crime prevention. 3. Search limited to outer clothing. Significance Police can stop and frisk when there is reasonable suspicion. RS is less than PC, but more than nothing. 5. PLAIN VIEW DOCTRINE 1. General Rule The police do not commit a 4th Amendment search when they see an object that is in the plain view of an officer who has a right to be in the position to have that view. a) Distinguish from seizure The fact that the police may have a plain view of an item does not mean that they may necessarily seize that item as evidence. Unless the officer is already legally in a place where he can touch the item, the fact that he sees it will not dispense with the need for a warrant to seize it. 2. Use of Mechanical Devices Plain view applies generally when the police stand on public property and use mechanical devices to obtain view of or his property. a) Beepers Police may attach a beeper to a vehicle and use the beeper to follow and this is not a search either. 3. BUT-- High Tech Devices Not in Public Use If government obtains special high tech devices, not in general civilian use, and employs them from public places to gain views that could NOT be had by naked eye, the use of such devices will be considered a SEARCH. Kyllo 4. Aerial Observation When police use an aircraft to view s property from the air, anything the police can see with the naked eye fall within the plain view doctrine as long as aircraft is in public, navigable airspace. Riley

B. PROTECTED AREAS AND INTERESTS: 1. From Trespass to Privacy Historically, the trespass doctrine applied to 4th Am under Olmstead, so to have a 4th Am S/S, the govt would have had to trespass w/in the phone booth. Olmstead v United States 1928 (1) Majority Holding Wiretapping is not a search or seizure within 4th Amendment. (2) Relevant No physical entry or trespass into a home. (3) Brandeis Dissent - The government cannot commit crimes to secure the conviction of private criminals. Also 4th amendment applies to sealed letters, so why not phone conversations? (a) Privacy of Telephone Greater Than Other Tamperings like Mail (4) Holmes Dissent Wiretapping is not inherently dirty business. You cannot bring into evidence obtained in violation of state law. a. Katz v US- The 4th Amendment protects people, not places. 1967 EoP.. The 4th Am protects people, not places. F: Police listen to phone booth calls via electronic listening device. Were recordings obtained in violation of 4th Amendment even though no physical occupation into the petitioners area? Trespass NOT Dispositive The reasonable EoP rule means that police conduct may be a 4th Am. seizure even though the police do not commit a trespass. If has a reasonable expectation that his conduct or words would remain private, the absence of police trespass will be irrelevant. KEY What a person knowingly exposes to the public, even in his home or office, is not subject to 4th Am protection. Rule What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Analysis One who occupies a public booth and shuts the door behind him is surely entitled to EoP. Holding Police conduct constituted a S/S within the meaning of 4th Am because it was an intrusion on s privacy interest. BUT, 4th Am protects more than merely privacy; also protects interest in possession in property and in liberty of person. Eop Defined Harlan Concur STANDARD FOR PRIVACY; There are twofold requirement of privacy: -There must be actual subjective EoP. (SUBJECTIVE PRONG) -The expectation is one that is recognized as reasonable. (OBJECTIVE PRONG) What is a reasonable (objective) EoP? Nature of property inspected Some property is linked more directly to activities that the Court wishes to protect from scrutiny than other property. Extent that a person has taken measures to keep private No reasonable EoP in that which knowingly exposes to public or is in open view. One who voluntarily conveys info to another person assumes risk that the person will tell or is a government agent. Degree of Intrusion by police activity Waiver of Privacy Right A persons conduct may mean that he has no reasonable EoP in a particular situation. The individual must be taking measures to secure their privacy. Examples found to be not protected: - Abandoned property, i.e. trash; - Things visible from aerial overview; - Things visible from public property; - Things a person says or does while in public; - Information the police learn by use of other senses. (e.g. the police use drug dogs in airports to smell luggage). 2. Reasonable EoP a. Garbage

CA v Greenwood: Trash on Curb gets no EoP. 1988 Police had garbage collector pick up garbage bags and turn them over. Evidence of narcotics found. Such evidence provided the PC for a warrant which led to finding of narcotics. Is taking of garbage a search? -ROL Per Harlan Katz concur, A persons subjective EoP does not equal a 4th Amend. protection unless society (the SC) accepts that expectation as objectively reasonable. -Analysis Garbage bags are readily accessible to members of the public. Also, were consensually conveyed to a 3rd party. Thus, there is no reasonable EoP. Reasoning under Katz : Subjective Prong: The respondent does not exhibit a subjective EoP where he turns over his trash and leaves it open and readily accessible to animals, children, and snoops. In addition, the respondent knows that the trash will be picked up by a third person (a city trash collector) and therefore puts it out for the express purpose of having strangers take it. Objective Prong: Police cannot be expected to avert their eyes from criminal evidence that could have been observed by any member of the public. The court notes that while CA recognizes a rt. to privacy in trash, this state rt. does not mandate federal recognition what one state imposes does not mean that society as a whole regards this as an objective EoP. Rather, states are free to impose more stringent constraints on police conduct than does the Federal Constitution here the case is not about state law, but it is about an interpretation of federal law. b. Curtilage FL v Riley-: Helicopter surveillance w/ the naked eye not a search. 1989- Greenhouse full of weed was part of cartilage of house (partially protected) & a fence shielded the yard from public eye, but s EoP was unreasonable. -ROL- The 4th Am. does not require police traveling in public airspace, to obtain a warrant to observe what is visible with the naked eye. -Law of Airspace Relevance If flying at a given airspace for the purpose of surveillance is against a law or regulation, a search may be questioned. It is of obvious importance that the helicopter was not violating the law. -Rationale Any member of the public could legally have been flying over house and could have observed. c. Electronic Tracking: Generally, an electronic device cannot give officers more info than they could have obtained through surveillance. 1. US v Knotts : Use of electronic beeper didnt violate 4th Am. where nothing was gained from its use. 1983 Police install beeper into container of package of substance used to manufacture illegal drugs. Through tracking, police uncover enough to get warrant. ROL Use of a beeper does not constitute a search. Rationale: 1. Visual surveillance was possible all throughout the route and would have suffice to reveal all the facts. 2. Beeper did not reveal movements in private places. 2. US v Karo : Use of electronic beeper violates 4th Am when it gives officers information they would have had to search to obtain. 1984 Knotts leave open if visual surveillance wasnt possible. I Does beeper monitoring violate 4th if it reveals info that couldnt have been obtained through visual surveillance? H Yes. It is a search to enter a residence without a warrant to verify that the container was there. The beeper tells the agent that the container is there. Visual surveillance cannot provide such details. 2 points bring up potential 4th Am violation: 1. Installation of monitoring device: W/L installation must be govt owned or be consented to by owner.

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2. Monitoring of device: Cannot be used to reveal information a search would be necessary to reveal. d. Govt Informant- False Friend US v White: When voluntarily converses w/X, assumes the risk, even if X is wired. 1971 Informer carries concealed radio transmitter. Conversations in restaurant overheard by use of radio equipment to another agent concealed in a kitchen closet with informers consent. Holding If law gives no protection to the wrongdoer whose trusted accomplice is a police agent (Hoffa), neither should it protect him when the same agent has recorded or transmitted the conversations which are later offered in evidence to prove the States case. Rule Where the wire-tapping or eaves dropping occurs with the consent of one of the parties to the conversation, then there is NO 4th AMENDMENT PROBLEM. Harlan in Dissent Monitoring conversation undermine confidence and sense of security between citizens in free society. Fear of bugging will smother liberties. Hoffa v United States 1967 Pre-Katz False friend case. conversed with X in s hotel suite. X was an acquaintance of D, but also a paid government informant. Government sought to introduce s statements at trial. Holding s hotel room is a constitutionally protected area, but no interest legitimately protected by the 4th Amendment involved because was not relying on security of the room; he was relying upon his misplace confidents that X would not reveal his wrongdoing. Rule When a person voluntarily speaks to another, he assumes the risk that the listener will ultimately betray. Is there a self-incrimination issue? No. Because there was no COMPELLED self incrimination. e. Warrants Against Non-Suspects: SW may be used, even if subpoena would be equally effective. Zurcher v Stanford Daily: 3rd parties may be Searched under the 4th upon a showing of PC. 1978- Newspaper agency searched b/c the agency was suspected to have photographs of those who were involved riot/demonstration. The newspaper was challenging the warrant on the basis that: (1) They were not suspects in the investigation; (2) The secrecy of their confidential informants and sources may be compromised; (3) The 1st A.: Held: Valid warrants may be issued to search any property, whether or not occupied by a 3rd party, so long as there is PC to believe that items to be searched for are located on the property to which entry is sought.

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C. THE EXCLUSIONARY RULE: 1. GENERALLY: a. HISTORICALLY: Weeks v US: 1914- In a FED prosecution, the 4th Am barred the use of evidence secured through an illegal S/S. Wolf v CO: 1949- SC refused to incorporate ER by the 14th, finding that a majority of States didnt apply the Weeks doctrine. Mapp v OH: 1961- SC finally incorporates ER based on 4th Am grounds. b. ER is a procedural right created by the Judiciary to remedy a CON violation. Leon c. 3 benefits to the ER: From Mapp: 1. Deter police misconduct. Exclusion of evidence may be an effective way of deterring unreasonable searches. 2. Dignity: the right to, by . 3. Judicial integrity in administration of justice. d. The Mapp exclusionary sanction comes into play only where the police have obtained evidence as a result of the unconstitutional seizure. (ie SIA). e. Leon and Hudson narrowed the scope of Mapp. (All evidence obtainedin violation of CON inadmissible) Leon: Whether ER sanction is appropriately imposed is a separate issue from 4th Am violation Q. Hudson: Exclusion may not be premised on the mere fact that a CON violation was a but for cause of obtaining evidence. See Fruit of Poisonous Tree -Wong Sun. 2. FRUIT OF POISONOUS TREE DOCTRINE: - When a S/S was unreasonable, and evidence (fruit) is obtained, it is tainted and will poison the process if used. -We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Wong-Sun. Generally, not all evidence is considered tainted. 3. What good is a right without a remedy? a. Wolf v CO- 1949 There were NO FACTS in the Wolf Opinion. Overruled by Mapp. SCs Framing of the Issue Does conviction deny the DP of the law solely because evidence admitted at trial was obtained in an inadmissible manner if it were in a federal court of law? Creation of New Right The security of ones privacy against arbitrary intrusion by the police is at the core of 4th Am. and is implicit in the concept of liberty in the DPC. H In a prosecution in a state court for a state crime, the 14th Am does not forbid admission of evidence obtained from unreasonable S/S. Federalism Rationale Many states rejected Weeks, but have other means of protection besides exclusion of evidence. States should be allowed to punish police in different manner than excluding evidence. b. Mapp v OH: Incorporated the ER to apply to the States. Overrules Wolf. H: All evidence obtained by searches and seizure in violation of the CON is, by that same authority, inadmissible in state court. 1961 refused to let police into home. Police then forcibly entered house, and showed a paper claimed to be the warrant. Police conducted a widespread search of the home and discovered evidence which was the basis for conviction. At trial no search warrant was produced by the prosecution and there is considerable doubt as to whether there ever was one.

4. Weighing the Costs against the Benefits a. Good Faith Exception to ER applied to Warrants

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US v Leon : 1984 Police rely on a SW issued by a magistrate but later found to be unsupported by PC. Issue: Whether the 4th Am ER should be modified so as not to bar the use in the prosecutions case-inchief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found unsupported by PC? H: Since the rule operates as a judicially created remedy, and not a CON right, and the SC ruled that a good-faith exception should apply. Good Faith Exception If warrant improperly issued, ER does not apply if officer reasonably believed it was proper. When to apply the ER: Cost/Benefit Balancing Test: Benefits: 1. Deter police misconduct. 2. Dignity: the right to, by . 3. Judicial integrity in administration of justice. Costs: 1. Unbending application of the ER would impede unacceptably the truth finding functions of the judge & jury. 2. Some guilty s may go free or receive reduced sentences as a result of favorable plea bargains. 3. Indiscriminate application of the ER may generate disrespect for the law & administration of justice. What is Good Faith? Whether a reasonably well trained officer would have known that the search was illegal despite the magistrates authorization. When Good Faith? Leon requires good faith BEFORE going to the magistrate. Ex.s of Bad Faith in Warrants: situations in which objective reliance on a warrant would not be reasonable: 1. Officer lies (or misstates facts) to get the warrant: (note that officer must lie, rather than informant upon whose statement he relies) 2. Magistrate wholly abandons his judicial role 3. Affidavit is clearly insufficient to establish PC 4. Warrant is so facially deficient that the officer enforcing it cannot reasonably presume it to be valid Justification 3 Fold: 1. ER designed to deter police misconduct rather than magistrates 2. No evidence magistrates inclined to ignore 4th Amendment 3. No evidence that exclusion would have deterrent effect on magistrates Language: The exclusionary rule does not operate so as to bar the use in the prosecutions case-inchief of evidence obtained by officers acting in reasonable reliance in a search warrant issued by a detached and neutral magistrate but ultimately found to unsupported by PC. Court says exclusionary rule is judicially-created remedy, not part of Con. Majority Distinction: 4th Amendment Right & Remedy The wrong of the 4th Amendment is search itself, whereas the exclusion of evidence is the remedy. Improperly Executed Warrants Leon assumes that the officers properly executed the warrant and searched only those places and for those objects that was reasonable to believe were covered by the warrant. Rule The Leon good faith rule does NOT cover improperly executed warrants. Gates Court gives relaxed standards to magistrates in their review of the applications. Leon holding coupled with Gates will make it inconceivable for a warrant to be invalid and an officer to be acting in Good Faith as well. Herring v. US was retrieving item from his vehicle in a police impound lot. Officer at lot recognized and asked clerk to search for warrants. Clerk found no warrants and officer contacted clerk in another district to search for warrants on the . Clerk found warrant. Officer followed out of impound lot, pulled him over and arrested him. Officer search vehicle, (i.e. search incident to arrest) and found drugs and gun.

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Issue: Whether the exclusionary rule should be applied to evidence found as a result of an unlawful arrest, when in-fact, the officers were acting out of good-faith? Holding: The court held that as long as the officers are acting in good-faith and that their conduct was not deliberate, reckless or grossly negligent, than the exclusionary rule does not apply. b. Knock & Announce Rule Hudson v MI: ER not applicable to violations of the K&A rule. The rule was never intended to prevent officers from getting the evidence. 2006 Officers executing a warrant for drugs and guns at s home announced their presence, but waited only a short time before entering. ST concedes that the K&A rule was violated. The single issue is what is the remedy. Common Law Principle: Officers must announce their presence and provide residents an opportunity to open the door. Richards v Wisc.: 1997- K & A Rule not necessary when police have RS that one of the following apply: 1. circumstances present the threat of physical violence; 2. there is reason to believe that evidence will be destroyed if advance notice is given; OR 3. K & A would be futile. Issue: What is the remedy when the K&A rule is violated? Interests of the K&A Rule: 1. Protection of human life & limb; 2. Protection of property; 3. Protects the elements of privacy & dignity destroyable by sudden entrance. H: ER isnt justified by a violation of the K&A rule. 5. GENERALLY: The ER is a remedy whereby evidence that has been obtained in violation of a s 4th, 5th, or 6th Am rights is excluded from being used against him in the prosecutions case. a. FotPT Doctrine All evidence obtained or derived by exploiting unconstitutionally obtained evidence is deemed FotPT and thus is inadmissible at trial under the ER. Exceptions: 1. Independent source Govt can show that it had a legally independent source for the evidence. 2. Inevitable discovery Govt would have discovered the evidence anyway. 3. Dissipation of the taint (doctrine of attenuation) One of several attenuating factors may prevent the illegally seized evidence from being treated as fruit, such that the act of free will by , a lengthy causal chain b/w the illegality and the seizure of the evidence, or a long time b/w the illegality and the seizure of the evidence. b. Limitations to the ER: A. Impeachment of the govt may introduce unconstitutionally obtained evidence for the limited purpose of impeaching a as a witness. B. Good Faith Reliance UNCOn obtained evidence may be used against a if it was obtained in good faith reliance upon: 1. Judicial Opinion: when police rely in good faith upon a judicial opinion that gives them reason to believe their actions are constitutional. 2. Statute: Evidence will not be excluded where police rely on a statute/ordinance that is later ruled unconstitutional. 3. Search Warrant Except: the 4 situations IDd in Leon. c. Standing: A doesnt have standing to challenge the violation of a 3rd partys CON rights. Therefore, a may object only to evidence directly obtained from a violation of s own CON rights.

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Ex: cannot object to evidence obtained in traffic stop revealing evidence supporting charges against if wasnt the one who got pulled over. wouldnt have a reasonable EoP. BUT, if does have a reasonable EoP in the place or property searched, they can get the evidence suppressed pursuant to an unreasonable S/S. 6th Am RTC & ER: CS: bright lines. Post indictment CS interrogation of the accused in the charged crime results in ER. Edwards. There is no washing of the atmosphere allowance under 5th. There is no traditional FotPT doctrine. Once poisoned, always poisoned. Ie: Because its such an explicit violation of the bright line rule, we are going to apply the exclusionary rule to deter 6th Am police conduct, we are going to exclude the gun. 5th Am Fruits : 5th Am is a trial right against self-incrimination. 1. Sometimes atmosphere changes Elstad 2. Non-testimonial evidence allowable, but not confession. Brown v Ill time passing purging the taint.

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D. S/S W/ WARRANTS -Analyzing a Warrant: 2 critical moments for reasonableness: 1. Application for the warrant. (enough PC?). Valid? 2. Execution of the warrant. (Reasonably Executed) Reasonable? 1. Validity of Warrant MD v Garrison: Officers enter wrong apt and find drugs. Warrant still valid, as reasonable mistake. 1987 Warrant authorizes search of the person and the entire 3rd floor of apartment complex. Found contraband in a separate persons apartment. Warrant was overbroad, but, only after entering the other apt and discovering narcotics did the officers realize the 3rd floor contained 2 apartments. ROL Validity of search depends upon the whether the officers failure to realize the overbreadth of warrant was objectively understandable and reasonable. See Leon, if warrant appears reasonable, no ER. 2. Gaining Entry Richards v WI: Minimum Standard for K&A entry. 1997 Wisconsin court had held that officers are never required to knock and announce presence when executing search warrant in felony drug investigation. Rule There is no per se exception to K&A rule. Concerns with a per se exception: 1. Not every drug case gets substantial risks. 2. Too easy to overgeneralize. 3. Too easily expanded into other categories. Reasonable Suspicion Test To justify a no knock, police must have reasonable suspicion that knocking and announcing, under the particular circumstance, would be dangerous, or inhibit the investigation.

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E. S/S W/ CONSENT General Rule Validly obtained consent justifies an officer in conducting a W/L search, with or without PC. If officer discovers evidence with valid consent search, he may seize it without warrant pursuant to the plain view doctrine. Rationale for Warrant Exception a. Waiver Principle By consenting, a person waives right to be from unreasonable searches. Looked at this way, a consent search is not really an exception to the 4th Amendment warrant requirement. Waiver Not Primary Rationale of Court Waiver principle is no longer used by Court. However, W/L search may still be upheld even if consenting party did not know that she could refuse. (Schneckloth) Waiver Would Conflict with 3rd Party Consent Jurisprudence Absent agency relationship, A could never waive Bs constitutional rights. b. Reasonable EoP One who consents no longer has reasonable EoP. Hence, a consent search is not really a search. 3rd Party Consent Alligns With This Rationale One who shares authority over property with other may assume the risk that others might permit common area to be searched. Validity of Consent a. What is the Issue? -Subjective State of Giver of Consent Some courts look to the subjective state of mind of person giving consent. -State of Mind of Officer Seeking Consent - Could officer reasonably conclude that consented? b. Voluntariness -Rule Consent is legally ineffective unless person granting consent does so voluntarily, rather than as result of duress or coercion, express or implied. (Schneckloth) -Burden of Proof On the prosecutor to demonstrate by preponderance of evidence. -TOC Measure of balancing factors. -Factors Supporting Coercion 1. Show of force 2. Presence of large number of officers 3. Repetitive requests for consent 4. Evidence relating to consenting persons age, race, etc. that suggests that her will was overborne by the officers conduct. 1. Awareness of 4th Am Rights: Consent to searches. a. Schneckloth v Bustamonte : LE doesnt have to tell you that you may refuse to give consent, but has the BoP to show the consent was voluntary. 1973 Police stopped a car in which X and were passengers, because headlight was burned out. After failed to produce his license and only X could provide identification, O asked for permission to search the car. X, the brother of the absent owner, consented. During the search, police discovered evidence that connected to a crime. Issue What must state prove to demonstrate that consent was voluntarily given? Held. Whether consent was voluntarily given is a Q of Fact to be determined from the TOC. When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the 4th & 14th Am.s require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. 2 Competing Concerns determining the meaning of voluntary consent: 1. The legitimate need for such searches; v. 2. The requirement of assuring the absence of coercion. ; Affirmative Duty to Inform that Consent Not Required? NO; Effective consent not negated by not telling that consent is not required. A persons knowledge of a right to refuse is a

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factor, among all of the surrounding circumstances, to be taken into account in determining voluntariness. Shneckloth Rule Knowledge of right to refuse is not the sine qua non of an effective consent. Voluntariness is the key to validity. 1. Johnson v Zerbst 1938 Rule For effective waiver of right, a state must prove an intentional relinquishment of a known right or privilege. Dealt primarily with effective waiver. Effective waiver mainly dealt with assuring the a fair criminal trial. Sheckloth Rejection of Waiver Rationale Waiver Inconsistent with 3rd Party Consent Idea of requiring a waiver does not seem consistent with the possibility of 3rd party consent. Surely, constitution can not allow a 3rd party to waive anothers constitutional right. 3rd party consent is pretty acceptable, hence waiver does not fit consent analysis. Degrees of Constitutional Protection Right of privacy is much less than the right to trial counsel, which was what case in Zerbst was about. NOTE This may seem to indicate that must have counsel present before effective consent is given? 2. Co-Occupant Consent GA v Randolph F: Officer responds to domestic disturbance, wife talks of husbands drug use, officer seeks consent to search house. Husband refused, wife consented. Officer searched, found drugs, was about to go get warrant, wife retracts consent, officer takes both to station, gets warrant, gets drugs. SC: 4th Am rights not limited by the laws of property. In balancing of competing individuals.

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F. W/L ARRESTS AND SEARCHES OF PERSONS Generally: 3 Justifications for a W/L S/S: 1. Exigent Circumstances (emergency); 2. 4th Am interest intruded upon by police was considered a lesser intrusion (minor); 3. Police are otherwise not involved in activity. Search Incident to Arrest b) General Principles (1) Rule A police officer who makes a lawful full custodial arrest may conduct a contemporaneous W/L search of: a. Arrestees person b. Grabbing Area c. If arrest occurs in a home, closets and other spaces immediately adjoining the place of arrest form which an attack could immediately be launched. (2) Rationale of Warrant Exception Custodial arrest provides the suspect with the incentive to use any available weapon to resist the officer or to flee, and to destroy or conceal evidence. Also in home arrest puts the officer at the disadvantage of being on his adversarys turf. (3) PC Not Required For Search The right to search the person of arrestee, grabbing area, & closets and spaces adjoining flows immediately and automatically from the arrest itself. Thus, police may conduct a search even if there is no reason to believe that weapon, evidence, or dangerous persons, will be discovered. (4) What May Be Seized The officer need not have PC to search, but he must have PC to seize evidence found in search. c) Search Warrant Exception (1) The Arrest (a) Full Custodial Applies only to arrests in which the officer takes the suspect into full custody which includes transporting her to the police station for booking. (b) Lawfulness of the Arrest The search-incident rule only applies to a search that is incident to a lawful arrest. (2) Contemporaneous of the Search (a) Area Within Arrestees Immediate Control Limited to searches substantially contemporaneous to the arrest. For example, if an officer arrests the driver of an automobile, but does not search the car until after she tows it to the garage, the later search cannot be justified by the SIA exception. This limitation is reasonable in light of the rules purpose: once the arrestee is taken into custody, there is no risk that she can grab any weapons or destroy any evidence that previously were in the lunging area. (b) The Person Time limitation might not apply to the person. Edwards (3) Scope of the Search (a) Search of Person The right to search a person incident to a lawful arrest includes the right to search the pockets of the arrestees clothing, and to open containers found therein as well as to search containers immediately associated with the person, such as a purse or shoulder bag. (b) Area Within The Immediate Control The area into which a person might lunge for a weapon or for evidence to destroy. (c) Protective Searches for Dangerous Persons Buie (d) In Cars: not containers.

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1. Arrests in a Public Place: No warrant Rule. US v Watson : A police officer is permitted to arrest w/o a warrant for a misdemeanor or felony committed in their presence, as well as a felony not committed in his presence if there was reasonable grounds for making the arrest. (PC) 1976 Watson was arrested without a warrant by a postal inspector for distribution of phony credit cards. Reliable informant signaled inspector that Watson was in possession of contraband. Rule Arrest warrants are not CON required. This is true even where the police have sufficient advance notice so that procurement of a warrant would not jeopardize the investigation. Judicial Preference Court declines to impose judicial preference as a CON rule. Officers are permitted to make judgments about PC with regards to arrest; a magistrate approved warrant not required. Principle An arrest is a seizure, hence CON provisions requiring warrant apply to it. Further, an arrest is a more SERIOUS INTRUSION than a search. Policy BUT, a warrant or exigent circumstances requirement hampers law enforcement. Why? -Postponing arrest can imperil prosecution -Court might find that a warrant becomes stale if officers choose to wait Dissent: -Staleness of Warrant? Once PC is found, it will continue to exist for the foreseeable future. Why would it go stale? -Search v Arrest Distinction? The 4th amend. does not differentiate b/w an arrest and a search. However, this case seems to make a distinction. 2. W/L Search of Person Incident to Arrest (SIA) US v Robinson: SIA is an exception to warrant requirement, & it is reasonable. 1973 -- Officer arrests for driving on a suspended license. During a search of s person (SIA), O finds heroin in a crumpled up pack of cigarettes retrieved from s shirt pocket. The resulting heroin was used in trial where he was convicted. SC: SIA is an exception to warrant requirement of the 4th Am. This has been formulated on 2 distinct propositions: 1. A search may be made of the person of the arrestee by virtue of the lawful arrest. 2. A search may be made of the area within control of the arrestee. Held: A custodial arrest of a suspect based on PC is a reasonable intrusion under the 4th Am.; that intrusion being lawful, a SIA requires no additional justification. If is the fact of the lawful arrest which establishes the authority to search, and we hold that the in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a reasonable search under the Amendment. Robinson versus Chimel Chimel Focus on the warrant clause and a burden of proof on the govt to justify any exception to the warrant requirement, and, in light of the presumption against W/L searches, a refusal to announce an exception broader than was absolutely necessary to meet the circumstances of the satiation. What would be considered an adjoining room? Robinson Less wedded to warrant requirement. Unlike Chimel, the Robinson Court did not require the govt to show that a full search in the present case was needed; that is, it did not demand proof of facts that justified dispensing with warrant requirement. 3. Police Ulterior Motives & the Plain View Doctrine Whren v US : PC for a traffic stop. Was there a seizure? Was it reasonable?

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1996 D.C. vice squad officers pulled over a car that made a right turn, without signaling, and then sped off at an unreasonable speed. The Officer observed two bags of cocaine through the window. Officers made the arrest for narcotics. Officers were part of the vice squad and do not normally give traffic tickets, in fact they are only allowed to intervene in traffic activities which may be severely dangerous. Gen Rule The decision to stop an automobile is reasonable where the police have PC to believe that a traffic violation has occurred. Rejection of Motive/Pretextual Argument An ulterior motive does not strip the legal justification of a search. Precedents: Robinson Lawful post arrest search not invalidated by lack of safety concern. Scott Subjective intent does not otherwise make conduct illegal. Proposed Reasonable Officer Rule Would a reasonable officer have stopped a car without the hunch of drugs? Rule As long as there is PC to stop vehicle, the stop is constitutional regardless of cops subjective motive. 4. Fleeing Felons: Is it okay to kill them? TN v Garner 1985 Robbery suspect fleeing. Officers shoots at him using deadly force. Statute authorizes use of deadly force against any fleeing suspect. Issue If PC is satisfied, does 4th Am speak to the method of how the arrest is made? (I.e. can arrest be made by any means necessary?) Rule Use of deadly force to arrest fleeing felon is sometimes unreasonable. Clarified Where officer has PC that suspect poses threat of serious physical harm, either to officer or public, it is constitutionally reasonable to use deadly force. Deadly Force Allowed to Make Arrest: 2 Conditions 1. Officer must have PC to believe suspect poses a significant threat of death or serious physical injury to the officer or others. 2. Deadly force may only be used if the officer reasonably believes that such force is necessary to make the arrest or prevent escape. SC: The reason the TN statute is UNCON is the word - OR - , you cant kill a fleeing just based on flight.

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G. W/L S/S OF PREMISES Search of Premises Under Exigent Circumstances There may be exigent circumstances which justify dispensing with the warrant requirement. These circumstances may include preventing the imminent destruction of evidence, preventing harm to persons, and searching in hot pursuit for a suspect. 1. Arrest in Home: The Warrant/Requirement Rule Payton v NY: 1980 Police with PC go to house to make W/L arrest. No one home. Break open door with crowbar. Find evidence in plain view. Rule If there is no exigent circumstances, the police may not make nonconsensual entry into a private home to make a W/L arrest. Principle So while do not need an arrest warrant to arrest someone outside home, you need one to arrest w/in the home. Analysis Entry into a private home is an extreme intrusion, and that an entry for the purpose of making an arrest is nearly as intrusive as an entry for a search. Result of Invalid Arrest will still be charged with crime. Primary consequence is just that evid. seized during the arrest will be inadmissible. Dissent White: All problems solved by having arrestee surrender at front door so dont need a warrant. Payton versus Watson Although an arrest warrant is required for arrest in a home, it is not required in a public place. The distinction between a home and a public place is critical. Public Place Includes the inside of a privately owned commercial building open to the public, since the Watson arrest occurred in a restaurant during working hours. 2. Within Immediate Control Chimel v CA: 1969 Police go to s house to execute an arrest warrant. No search warrant. After arresting D, police conducted a full scale search of the s 3 bedroom house and discovered the stolen coins. Rule Police can not search the whole house incident to the arrest; they can only search the area within immediate possession or control of the arrestee (i.e. the grabbing distance) Twin Policy Aims 1. Safety of Police 2. Preservation of Evidence 3. Destruction of Evidence Vale v LA: 1970 Arrest warrant in hand. Vale arrested on steps of porch trying to get into the house after suspected drug transaction. Rule A search may be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. If a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house. Destruction of Evidence? The Vale Court indicates that a W/L search may be permitted where evidence was in the process of destruction. But, since the Court did not allow search where there was merely a possibility that accomplices would destroy the evidence, it thus appears that the destruction of evidence exception is narrow. 4. Technology Advanced Surveillance Kyllo v US: 2001 Cops use thermal imager to detect for high intensity lamps. Thermal imagers detect infrared radiation not visible to naked eye. Performed from the car from the front of the house. Info used to get a warrant. Issue What limits are there upon technology to shrink the realm of guaranteed privacy? Policy Considerations Technology can not withdraw protections of EoP. Rule Obtaining by sense enhancing technology any information regarding the interior of the home which could not otherwise have been obtained but for physical intrusion into a constitutionally protected area constitutes a search. (At least where the technology in question is not in general public use.)

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Off the Wall vs Through the Wall Distinction? There is no fundamental difference. Applying this distinction will leave the homeowner at the mercy of advancing technology. Potentially Obtainable by Non Technological Means Argument The fact that equivalent information could sometimes be obtained by other means does not make the use of means that violate 4th Amendment. Inevitable Discovery Doctrine Idea that wrongfully taken evidence would have been found anyway. What is a Search?? - It cant be based on expectation Why? With more technology, there is much more invasion then were used to; thus soon there will be NO EXPECTATION DISSENT Off the Wall Surveillance All camera does is measure heat emitted from exterior of the house. There was no unauthorized physical penetration. Katz vs Kyllo? In Katz, the device was attached outside the booth, but was the functional equivalent of breaking in because u couldnt hear from the outside. Here, the imager only detected heat radiating from outside of the house. In Katz, if noise audible from outside the booth, it would be in the public domain. Legislature Should Define These Issues

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H. W/L S/S OF VEHICLES & EFFECTS Automobile Search Warrant Exception General Rules Overview A citizen who enters an automobile does surrender the right to have the initial PC determination made by a magistrate. Searches At the Scene Rule O may conduct an immediate W/L search of an automobile that he has PC to believe contains contraband, or fruits or evidence of a crime if: - He stops the car on the highway (Carroll) OR -- Is readily capable of use on the highway, and is found in a setting that objectively indicates that it is being used for transportation and is discovered stationary in a place not regularly used for residential purposes. (Carney) Searches Away From The Scene Rule A W/L search valid at the scene is also permitted if it takes place shortly thereafter away from the scene. (Chambers) Impact Police can seize a car without searching it, move it to another site, and do W/L search there days after seizure. PC Exception is to a search warrant NOT to PC! Keys to Analysis: PC to Search Applies to Entire Car or Only Part? In most circumstances, police will receive information that suggests that criminal evidence may be found somewhere in the car. In this case, the right to search will extend to the entire car. On the other hand, the police may possess more limited PC. See Acevedo, where police observed place bag in trunk. Police there only had PC to search trunk only. Once Police Discover Evidence They Were Looking For, the Search MUST CEASE Example in Acevedo, after they found the bag, the search had to stop. Police may not Search any Portion of Vehicle that COULD NOT CONTAIN the object of the Search Search of Containers Found in Cars General Rule Containers found in cars may be searched, without warrant, during an otherwise lawful automobile exception search. (Acevedo) Contemporaneousness Not Necessary If container may be search at the scene, it may also be seized and searched without a warrant shortly after at the station. Rule Applies in Either 2 General Circumstances Part of Valid W/L Search (via Auto Exception), the police may come across container large enough to hold criminal evidence. PC to believe that a particular container may be holding criminal evidence will be found in a car. Under such circumstances, the police may conduct a W/L search of the car for the container (per auto exception), and then open the container also without a warrant. California v. Acevedo established that police do not need a warrant to search a container within a vehicle, provided that there is PC to believe that the object is in the vehicle.

Brendlin v. California established that passengers are also seized for 4th Amnd. Purposes when the driver is pulled over, and so may challenge the constitutionality of the stop. 1. Two Rationales at Work Together: Mobile Homes CA v Carney: 1985 Uncorroborated info that was trading drugs for sex. parked in a city lot, near a courthouse where warrant could have been secured. Police put home under surveillance for an hour. Youth enters vehicle and later left with marijuana. No indication that vehicle was going to depart. Police enter without warrant or consent and seize drugs.

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Analysis:

1. Mobility A home is readily mobile by the turn of the key. Court using the potentially mobile reasoning of Chambers. 2. Lesser EoP Even though the mobile home was not immediately mobile, it was a vehicle, not a residence. Rule A mobile home is to be analyzed under the automobile exception not under the heightened privacy interests of a home. Factors Relevant in Distinguishing Home from Automobile 1. Location 2. Readily Mobile or Elevated on Blocks 3. Licensed as Vehicle 4. Connected to Utilities 5. Convenient Access to Public Road Auto Exception Clarified When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. 2. Search of Car Incident to Arrest of Person Outside of Car Historically, if was arrested outside car, cops had no ability to search car SIA. a. NY v Belton 1981 Officers stops vehicle on PC. Arrest driver and incident to arrest search passenger compartment. Rule Incident to an arrest of a recent occupant, officers can search the passenger compartment of a car. Allows a broader search of interior of vehicle to be searched where they have PC to believe evidence or contraband exists. They are allowed to go into containers.

Arizona v. Gant police arrest after he had left his vehicle. Police handcuffed and placed him in squad car. Police then searched s vehicle (search incident to arrest). Issue(s): Whether the officers are allowed the search the car of a person who just arrested, while the person is handcuffed and placed in the back of a squad car? Holding: No, the police may only search the area within the suspects immediate control. b. Thornton v US: Allows recent occupant SIA 2003 PC to arrest driver of car. Police follow to a parking lot. gets out of vehicle and officer accosts him. admits to having drugs on him. Officer arrests and handcuffs and places him in back seat of car. Then, searches the car and finds handgun. Does Belton allowable search of car incident to arrest apply if is not in the car when contacted by officer? Rejection of Contact Initiation Approach of Belton No basis for determining that is recent occupant of car on the basis of when contact was made by the officer. Rule So long as an arrestee is the sort of recent occupant of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest. Scalia Concur and Critique of Methodology Is a search justifiable if made while was already handcuffed in the squad car? This argument claims that cop should not be penalized for having the precaution to secure suspect and not have searched when he could have searched. But this argument is weak because it assumes the search must take place. A W/L search is not a right, but an exception! PC Proposed Rule All officer needs is PC to search for relevant evidence inside a car. c. CO v Bertine

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1987 Ct upholds a police inventorying of a s backpack found in his car (which was being impounded) after the was arrested for drunk driving. Extension of Opperman Opperman only allowed inventory searches of automobiles to be restricted to safeguarding those articles which are within plain view of the officers vision. Inventory Search or Incident to Arrest? Inventory because happened after arrest. Rationale By securing the prop., the police protect the property from unauth. interference, theft, and vandalism. They also protect themselves against wrongful accusations of the temptation of stealing the prop. Plus, they protect themselves physically in case there is a bomb or weapons or explosives aboard. 3. Search Incident to Citation Knowles v Iowa: 1998 Police stop for speeding. Issues citation. Then makes full search of car, finds marijuana. Rule Robinson does not apply in situations of citations. No threat to officer. But If arrest, u can search and if u find nothing, then you can give citation. If you issue citation, you can ask person to step out of car and you can patdown. 4. Container Belonging To Passenger, Not Driver WY v Houghton 1999 Car stopped for speeding. Driver has syringe in his pockets. Women passengers ordered out of car. Officer searches car incident to arrest. Finds purse of passenger. With no suspicion as to passenger, officer searches purse. Rule Police officers with PC to search a car may inspect passengers belonging found in the car. Interpretation of Ross Scalia majority interprets Ross to allow search of anything in the car regardless of whether they are owned by the driver.

Balancing Test: Intrusion into privacy: Passengers have a reduced EoP with regard to property they transport in a vehicle travel through public thoroughfares, subject to stops by police, exposed to traffic accidents. Govt Interest: Otherwise risk that the evidence of contraband will be destroyed or hidden. Passenger may be in a conspiracy with the driver and stow all the drivers belongings in the passengers bag. Difficult to determine who owns which container. Common enterprise. Policy Reduced Privacy Expectations Passengers no less than drivers have minimized expectations of privacy. Ownership based rule would impede law enforcement. What if search was property on the person? If a wallet was attached to the person, the officer probably would not have been able to search it absent specific PC. Same probably goes if was holding the purse in her hand. 5. Arrests for Merely Citable Offenses Atwater v City of Lago Vista 2001 Police officer sees seat belt violation of person he has history with; a woman with 2 small children. Calls for backup and arrests woman. Woman sues police in 1983 suit. Common Law W/L Arrest Rule Such is allowed with 2 limitations Offense must have occurred in officers presence Offense must constitute a breach of the peace

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State Law Discretion State law gives officer discretion to choose between custodial arrest and issuance of citation. Holding Common law is to be relied on, but 2 centuries of uninterrupted state and federal practice permitting arrests for misdemeanors that are not a breach of the peace is dispositive. Misdemeanor arrest without breach of peace is OK Historical Practice as opposed to Common Law doctrine.

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I. W/L S/S: LESSER INTRUSIONS: STOP & FRISK Test: taking into account all of the circumstances surrounding the encounter, would reasonable person feel free to leave? 1. Is an anonymous tip with non crime relevant facts substantiated reasonable suspicion? NO FL v JL: Anonymous tip that a person is carrying a gun, without more, does not justify a Terry stop 2000 Anonymous tip that man at bus stop in plaid shirt carrying a gun. Police find man in plaid shirt but no other suspicions. Frisk produces firearm. Anonymous Tip Rule An anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity. (Basically, an anonymous tip by itself doesnt even get reasonable suspicion; Remember PC analysis!) RelevantIs there predictive information? Seriousness of the offense An analysis may be different if there was discussion of a bomb or a serious imminent offense. The offense here was possession of firearm. By itself with no indication even in the tip that was going to go postal was not a sever offense. The reasonableness must be measured by what the officers knew BEFORE the search Stop vs. Frisk This case does not speak to situations of frisk where has been legitimately stopped. This decision only related to the authority to make the initial stop. 2. Is flight or the reputation of a neighborhood grounds for reasonable suspicion? NO But they can be strong factors and combined are enough! Ill. v Wardlow Fleeing from cops may justify reasonable suspicion on which to base a Terry stop, if other circumstances are present . 2000 Police officers in known crime neighborhood see a run away upon their presence. Catch him and find a handgun. Rule Individuals presence in an area of expected crime activity is not enough to support a reasonable suspicion. Analysis But combined with unprovoked flight is certainly enough for RS. DISSENT The court is putting way to much weight on flight. It far too often can be innocent. 3. How long can a Seizure be before its unlawful? FL v Royer 1983 Police question at airport. Ask for consent to search suitcases. Consent given. Search 15 minutes after initial encounter. Holding When key produced to suitcase, the detention was a serious intrusion on personal liberty than is allowable for mere suspicion of criminal activity. Rule Detention must be: 1) temporary and 2) last no longer than necessary to effectuate the purpose of the stop. And 3) method must be least intrusive means reasonable available. NOTE The burden is on the POLICE to show this & this is about a seizure in general NOT a Terry stop. 4. Police Action Short of Seizure US v Drayton 2002 Bus driver turns over bus to police officers. Officers say theyre searching for drugs. Officer asks passenger to search bag. consents. Officer asks to search person. consents. Officer finds drugs. Issue Was there a seizure by asking the passengers for a search? Holding Because of no application of force, intimidating movement, or showing of force, there is no seizure. Relevant Court notes that 5 or 6 times EVER, passengers had not complied with search. DISSENT The threatening presence of an officer is enough for a person to think consent is required.

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5. Temporary Seizure of Effects US v Place 1983 Agents stop suspected drug courier. While warrant sought, the took his luggage and transfer them to another airport where sniffed by drug dog. Bags held all weekend. Application of Terry Balancing Substantial governmental interest and detention is minimally intrusive. Minimally Intrusive in a Standard Detention of Luggage? 1. free to continue his travels and not subject to embarrassment. (?!) 2. Not subject to coercive atmosphere of confinement 3. Not subject to public indignity of detainment Application Holding bags all weekend is well beyond reasonable. 6. Parole Status Samson v CA 259 Dissent: Not a special needs case. Suspicionless criminal search. Decision based on Q2. Key part of 4th Am is not I/S(not facts).

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V. THE RIGHT TO COUNSEL : 6TH AM. A. CONSTITUTIONALIZING THE RIGHT TO FIGHT: PREPARATION FOR DEFENSE AT TRIAL & BEYOND When Does Right to Counsel Attach? Rule Apart from Self Incrimination Considerations, is not entitled to the assistance of counsel unless: a. Adversary Proceedings have commenced AND b. The encounter is a critical stage of the criminal proceedings. Overview Poverty and the criminal justice criterion appears to be a lack of financial resources adequate to permit the accused to hire his own lawyer The RTC at Trial 6th Am Entitles accused in a federal prosecution to employ a lawyer to assist in her defense at trial. Giddeon RTC has been deemed a fundamental right of criminal justice; therefore an accused in state prosecution has a similar right to retain an attorney. Indigents and the Right to Appointed Counsel Justice Black in Griffin There can be no equal justice where the kind of a trial a man get depends on the amount of money he has. Broadening of 6th Amendment Mandate of legal assistance to indigent criminal defendants through the 6th Amendment. Johnson v Zerbst 1938 Rule 6th Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. By its language, 6th Am does not apply to criminal appeals. When the trial ends, the prosecution ends; on appeal, its who seeks to upset the status quo. Despite the inapplicability of Sixth Amendment, appellate procedures are subject to standards of the 14th Amendment equal protection and due process clauses. 1. Road to Gideon a. Powell v Alabama 1932 9 youths prosecuted for the alleged rape of 2 white girls in Alabama. Youths, ignorant and illiterate, were indicted, arraigned, brought to trial in less than 2 weeks after the capital offenses occurs. On day of trial, 2 lawyers unfamiliar with local law offered to represent youths and denied continuance to adequately prepare. Conviction overturned. Limited Capital Case Rule In a capital case, where is unable to employ counsel and is incapable of adequately making his own defense because of ignorance, illiteracy, etc it is the duty of the court to assign counsel for him as a requisite due process of law. Duty not discharged when circumstances preclude the giving of effective aid in the preparation. b. Betts v Brady 1942 Indigent indicted for robbery. Requested but denied assistance of counsel at trial. Convicted of robbery and sentenced to prison. Rule The right to counsel is not essential to fair trial in light of common understanding of those who have lived under Anglo American system of law. Distinguishing of Powell Not a capital crime. This case only presented case of simple issue of whether s alibi claim should be believed. here was not helpless as in Powell. Relevant was man of 43 years or ordinary intelligence. had been in criminal court and had pleaded guilty before, thus was familiar with criminal justice. 2. Right to Counsel for feolnies Gideon v Wainwright

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1963 Overruling of Betts. prosecuted for felony of breaking and entering. requests but denied counsel. Conducts defense as well as could be expected by layman. Jury convicts him and sentenced to 5 years imprisonment. Rule Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. When is the Right to Counsel Begin? The court avoided this issue. Relevant Gideon involved a felony trial, hence unclear about misdemeanor trials. 3. RTC incorporated. AL v Sheldon not given counsel during assault trial. Convicted and sentenced 2 years unsupervised probation and 30 day suspended sentence. Issue. Does the Sixth Amendment right to counsel permit a state to impose a suspended sentence even though the ineffectively-assisted defendant was not actually incarcerated? Rule of Law. Under the Sixth Amendment, a suspended sentence that may result in an actual deprivation of a defendants liberty may not be imposed unless defendant was accorded guiding hand of counsel in the prosecution for the crime charged. Rothgery v. Gillespie County TX established that the first appearance is the a critical stage that triggers the 6th Amnd. right to counsel. 4. First Appeal Douglas v CA Appeal and Right to Counsel Rule 14th Amendment requires state to provide indigent criminal defendants free counsel on appeal, at least for their initial appeal which state law requires the courts of appeal to hear. Is this Due Process or EP? Justice Douglas states, When an indigent is forced to run this gauntlet, the right to appeal does not comport with fair procedure. This seems to indicate this is more of a Procedural Due Process case. But, Douglas also states, There is lacking that equality demanded by 14th Amendment where the rich man enjoys the benefit of counsel while the indigent is forced to shift for himself. Harlan Dissent This is not an Equal Protection matter! Discriminatory impact of laws on the poor than on the rich does not implicate Equal Protection. Must be discriminatory purpose. There is no affirmative duty per EP to lift handicaps flowing from differences in economic circumstances. 5. Subsequent Appeals Ross v Moffitt 1974 Criminal defendant provided with an attorney for his initial appeal; but denied an attorney to seek discretionary review in the state supreme court or writ of certiorari in US Supreme Court. Discretionary Appeal Rule Government is not required to appoint counsel for an indigent defendants discretionary criminal appeal to the highest state court or US Supreme Court. What is fairness (Due Process)? Court focused on difference between trials and appeals: whereas state cannot dispense with trials, they do not have to permit appeals. Analysis Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. (BEING SINGLED OUT IS AN EP ISSUE!) Equal Protection Discussion EP does not require a state to duplicate the legal arsenal that may be privately retained by a criminal defendant. Indigent must have an opportunity to present his claims fairly in the context of the appellate process. What is s interest in an attorney? Court acknowledges that lack of an attorney is a significant disadvantage; but there is no constitutional right in such.

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What is difference between initial appeal right and subsequent appeal rights? Ensures right of at least one appeal. Right to meaningful appeal is thus preserved. But, court has required government to pride free transcripts for ALL appeals.

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VI. POLICE INTERROGATION & CONFESSION A. BUILDING A CONFESSION DOCTRINE ON DP AND THE RTC: DP/ Voluntariness and RTC Historical: Before Miranda and 5th Amen cases, USSC held that confessions must be voluntary under DP clause. Three primary interests protected by the DP voluntariness test for admitting confessions 1. Reliability- Barred use of confessions which were unreliable because of the police methods used to obtain them 2. Police Conduct- Barred use of confessions produced by offensive methods even though reliability was not an issue 3. Involuntary in fact- Barred used of confession which were involuntary in fact (obtained from a drugged person) even though they were reliable and there was police misconduct Note: primary rationale for barring confession that are not given voluntarily is that they are unreliable! The confession rule was designed merely to protect integrity of fact-finding process. Initially, the court merely looked at voluntariness. The Shortcoming of the Voluntariness Test 1. It is an ambiguous term and a mix of factual and legal elements, invites judges to give their own weight to different facts. Police have a hard time knowing where the lines are when Ct looks at totality of the circumstances. 2. It is hard to prove psychological or mental coercion 3. Issue becomes a swearing match b/t police and and usually loses. Right to Counsel and the Analogy to the Accusatorial, Adversarial Trial: in early pre-Massaih and Gideon cases, USSC upheld convictions 1. said no DP violation even when requested counsel and was refused 2. concurrences and dissents point out that DP requires that the accused who wants counsel should have one at any time after the arrest 3. Spano (1959): once a person was formally charged by indictment or information his constitutional right to counsel had begun, at least with counsel he had retained himself. Court found confession inadmissible on coerced confession grounds (not right to counsel). Constitutional provisions: the admissibility of s confession or incriminating admission involves analysis under a host of constitutional provisions Due Process (5th and 14th As): is denied DP if a statement obtained via police coercion (and therefore an involuntary statement) is used against D. Self-Incrimination (5th A): compelled self-incrimination is not allowed (much like involuntary statement above); Miranda warnings must be given Right to Counsel (5th and 6th As): 6th A: violation if govt deliberately elicits statements from suspects in absence of counsel or waiver of the rights NOTE: attaches only after formal judicial proceedings have begun (Massiah) th 5 A/Miranda: there is no express RTC under the 5th A; only through Miranda NOTE: attaches when suspect is subjected to custodial interrogation 1. Confession following lengthy, continuous confession is not voluntary. Ashcraft v TN Qs in relays by cops for 36 hours w/o rest in order for cops to obtain confession. SC: By secluding in a room for 36 hrs w/o rest, the coercive force of the interrogation was inherent. DP doesnt permit doesnt permit. 2. Confession following days of interrogation not voluntary Watts v Indiana DP is violated when is systematically Qd while in custody. SC: A confession must be the product of the s free choice. Sustained police questioning deprives a of free choice, because its a natural human condition to succumb to unrelenting police pressure. This continued pressure creates an impression that police will not cease interrogation until waives

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CON rights and confesses to crimes. Permitting such conduct is in violation of DP. DP requires that police follow appropriate accusatorial procedures before a liberty interest is denied. 3. Post-Indictment statements made to Co- inadmissible Massiah v US 1964 indicted for narcotics offense. Retained lawyer, pleaded not guilty and released on bail. Informer charged in same indictment agreed to cooperate with government in its investigation. Informer installs listening device in car. makes incriminating statements. argues that statements in his car violate his 6th Amendment right to counsel. Rule 6th Amendment violated when there was used against at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel. Nutshell The fruits of that investigation, to the extent that they involved deliberately elicitation of the accuses own words, in the absence of counsel, could not be used against him at his own trial. Bright Line Rule Once judicial criminal proceedings commence, the accused has a right to legal representation when the government interrogates him. Note that M was not interrogated. The rule is that after indictment the police cannot deliberately try and elicit incriminating statements from the person. CRUCIAL The period after a suspect is formally charged with an offense and before trial is the most crucial period of the proceedings. At this time consultation and preparation are vitally important. IMPACT For 1st time holding that Constitution is violated when government agents, in the absence of defense counsel, deliberately elicit incriminating information from a person against whom adversary judicial criminal proceedings have commenced. Question: How was 6th Amendment right to counsel violated? He was not barred from Is automobile. Would it have been any value if he had been in the car? Could his expertise have protected? Is this issue the right to counsel or the Weatherford/Bursey deceit/undercover issue? Potential Roles for Lawyer in Pretrial Provide assistance in encounters with govt in which her innocent clients weakness, ignorance, or inertia threaten to result in an unjust conviction. Provide preventative assistance. This the fox hunt view of justice. Counsels role is to make an uneven match, more even, to give the accused, even if she is guilty, a fair chance to win. Provide adversarial assistance. Lawyer is guardian of the fortress. It is no longer appropriate for prosecution to enter this fortress. Massiah seems to be justified on this basis. Government violated this fortress. 4. The RTC attaches once police investigations shift from investigatory to accusatory. Escobedo v Ill. 1964 was under arrest for murder, taken into custody late in the evening and interrogated at the police station. During the questioning, he was handcuffed and was kept standing. asked to consult private lawyer, but was refused on false ground. Late in night, police suggest confront accomplice X. agrees to talk to X. makes incriminating statements to X. X had already implicated D. never informed of privilege against self-incrimination. Holding Confession inadmissible, even if voluntarily given, because it had been obtained in violation of s 6th Am RTC. The advise of counsel would have informed him of the fact that exculpatory statements made would be detrimental. Groundbreaking Never had Court held that 6th Amendment right to counsel applied to a person against whom criminal proceeding had yet to formally commenced, such as indictment.

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Relevant When requested counsel and denied, the investigation ceased to be an investigation. By that time it had focused on D. Narrow Rule 6th Amendment violated when, as here, The investigation focuses on him. He is in custody. Police interrogate him. He requests and is denied an opportunity to consult lawyer. Police have not informed him of privilege against self-incrimination. Right to Counsel or Self Incrimination Opinion? Court later concluded the rationale of the case was to guarantee full effectuation of the privilege against self incrimination. Significance Attitude toward interrogations and confessions, which formed the basis for Miranda.

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B. BUILDING A NEW CONFESSION DOCTRINE ON THE PRIVILEGE AGAINST SELF-INCRIMINATION: 7 VALUES REFLECTED BY THE PRIVILEGE AGAINST SELF-INCRIMINATION: Murphy v Waterford Commission 1. Our unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury or contempt; 2. Our preference for an accusatorial rather than an inquisitorial system of criminal justice; 3. Our fear that self-incriminating statements will be elicited by inhumane treatments and abuses; 4. Our sense of fair play which dictates a fair state-individual balance by requiring the govt to leave the individual alone until good cause is shown for disturbing him and by requiring that the govt in its contest with the individual to shoulder the entire load; 5. Our respect for the inviolability (sacredness) of the human personality and the right of each individual to a separate enclave where he may lead a private life; 6. Our distrust of self-deprecatory (disapproval/criticism) statements; and 7. Our realization that the privilege, while sometimes a shelter to the guilty is often a protection to the innocent. 1. A grand Jury witness may not commit perjury to avoid self-incrimination. US v Mandujano : Miranda N/A to grand jury investigations. (1976): Plurality of the court held that no Miranda warnings necessary. There is no inherent compulsion to speak in a grand jury hearing like there is in a police station. was advised of 5th Am privilege. But not told that atty would be appointed to him for free. Court also discussed the procedure to be followed when a witness asserts the privilege. The grand jury has two choices: (1) If the desired testimony is of marginal value, the GJ can pursue other avenues of inquiry. (2) If the testimony is thought sufficiently important, the GJ can seek a judicial determination as to the bona fides of the witness 5th Amendment claim. If in fact there is reasonable ground to apprehend danger to the witness from his being compelled to answer, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness. If immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity. 2. must be made aware of Rights prior to Interrogation Miranda v US In Historical Context Dissatisfaction with Voluntariness Test Court had concluded that there was intolerable uncertainty in it and a brighter line rule was necessary. Molloy/Hogan 5th Amendment privilege against compulsory self-incrimination held applicable to states. Massiah Govt. may not deliberately elicit statements from a person under indictment in the absence of counsel. 6th Amendment Escobedo Extends right to counsel to pre-indictment interrogation. Miranda v Arizona 1966 Four cases consolidated for appeal. Significant common facts: 1) each of the suspects had been taken into custody; 2) questioned in interrogation room; 3) questioning occurred in police-dominated environment, in which each suspect was alone with questioners; 4) suspects were not informed of their privilege against compulsory self-incrimination. KEY The court realizes that interrogation is the critical stage. RADICAL Miranda was more radical than Gideon. Before Gideon, many states had already provided right to counsel at trial. The Holding: A series of steps. The privilege against self-incrimination applies to formal AND informal proceedings. Police can no longer give people the belief that they have the right to an answer. 5th A is violated if statements are taken w/out giving a proper warning.

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Warning must include: The rt. to remain silent; That anything he says can be used against him in a court of law; That he has the rt. to the presence of the attorney; and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Rule 5th Am: Self-Incrimination Any statement, exculpatory or inculpatory, obtained as the result of custodial interrogation may not be used against the suspect in a criminal trial unless the prosecutor proves that the police provided procedural safeguards to secure the suspects privilege against compulsory self-incrimination. Custodial Interrogation Defined Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. This is what the Court spoke of in (Escobedo) The Self-Incrimination clause strikes a balance b/w effective law enforcement and respect for the dignity and integrity of citizens. It is effective only when a persons right to remain silent is preserved. 5th Am: RTC In custody suspect has a right to consult counsel prior to questioning and to have counsel present during interrogation. Purpose of Miranda Right to Counsel To assure that the suspects ability to choose whether to speak or to remain silent is unfettered. Subsidiary Functions Reduces likelihood that police will act coercively; can testify at trial regarding coercion, and he can make sure that any statement given by his client is accurate and reported correctly at trial. NOTE This is NOT the 6th Amendment right to counsel! This may be called the Miranda Right to Counsel Procedural Safeguards Congress and states are free to develop procedural safeguards for protecting the right against self incrimination. But, until such measures are fully as effective, the following warnings must be provided. (Rehnquist uses this in Tucker as evidence that Miranda is not constitutionally required) Right to Remain Silent The police MUST in clear and unequivocal terms indicate that the suspect has a RIGHT TO REMAIN SILENT. Consequences Explanation that ANYTHING SAID CAN AND WILL BE USED against in court. Counsel must clearly be informed that he has the RIGHT TO CONSULT COUNSEL and have lawyer with him during interrogation. Financial Ability Unrelated to Counsel Police must inform that if is indigent, LAWYER WILL BE APPOINTED. Waiver Suspect may waive privilege against privilege against self-incrimination and 5th Amendment right to assistance of counsel. HEAVY BURDEN rests on prosecutor to demonstrate that D, 1) voluntarily; 2) knowingly; & 3) intelligently waived his rights. Voluntariness A lengthy interrogation before a statement is strong evidence of involuntary. Intelligence No amount of circumstantial evidence that a person may have been aware of his right will suffice to stand instead of warning being actually given. Enforcing Rights Right to Silence If suspect indicates in any manner at any time prior to questioning that he wishes to remain silent, the interrogation must cease. Attorney If person asserts his privilege in his attorneys presence, there may be some circumstances in which further questioning would be permissible, particularly in the absence of evidence of overbearing. Right to Counsel If suspect states at any time that he wishes to consult an attorney, the interrogation must cease. Waiver Only effective if it is by an express statement by that 1) he wants to make a statement and 2) does not want attorney present. Rationale

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Custodial Interrogation as Compulsion Court shows police manuals which recommend coercive tactics. Concludes interrogation is police dominated and psychologically intimidating. In the absence of safeguards, interrogation will result in unconstitutional compulsion. There is something inherent in the custodial interrogation that creates a presumption of compulsion to waive 5th Amendment right. Oral Argument Answer by There is a substantial difference between compelling someone to give up his 5th Amendment privilege against self-incrimination and coercing a confession out of them. Limited Importance of Confessions in Law Enforcement Court finds overstatement of the need for confessions. (confessions are gravy) Importance of Adversarial System 5th Amendment is essential mainstay of adversary system. It is not for authorities to decide when suspect should speak.

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C. APPLYING AND EXPLAINING MIRANDA: 1. Custody and Interrogation a. But Even IN the Police Station May Not Be In Custody! 1. California v Beheler 1983 voluntarily agreed to accompany police to station-house, in order to be questioned. Rule Not a custodial interrogation if voluntarily agreed to accompany. In Custody Per Miranda: There is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. 2. Yarborough v Alvarado 2004 Detective tells s parents that theyd like to talk to D. Parents bring 17 yr old to station. No warnings given. 2 hours of questioning. admits to involvement in murder. Dissent: A ct must answer the question in light of all the circumstances surround the interrogation; A reasonable person would not have thought he would have been free to pick up and leave in the middle of the interrogation; Involvement of Alvarados parents suggests involuntary behavior on Alvarados part. The precise def of reasonable person may depend on the legal context, appropriately account for certain personal characteristics. b. What Constitutes Interrogation within Miranda? RI v Innis 1980 arrested for a murder in which the weapon in crime had not been discovered. placed in a police car with 3 officers. En route to station, O talks about children in the neighborhood hurting themselves with weapon. interrupts and offers to show police where was weapon. had not yet been given Miranda warnings. But, had requested to see a lawyer, thus police required to cease interrogation until talked to lawyer. Issue Is statements by officers about the children an interrogation so as to violate the cease interrogation rule? Rule Interrogation refers not only to express questioning but also to its functional equivalent. Functional Equivalent Any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Focus On the perceptions of D, rather than the intent of Police! Officers subjective intent is NOT THE KEY! Interrogation Test: Objective Inquiry Should the officer have realized that his acts or words were reasonably likely to result in an incriminating response from the suspect. Negligence? An interrogation occurs if an officer was negligent in failing to foresee that his words or actions were likely to result in a statement from the suspect. Officers Intent NOT Totally Irrelevant Footnote 7 Any knowledge the police may have had concerning the susceptibility of to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonable likely to elicit an incriminating response. Analysis Statement about children is not the functional equivalent of interrogation. Conversation was brief, not especially evocative, no evidence of susceptibility c. When Miranda Warnings Are NOT required: Covert Custodial Interrogations Ill. v Perkins 1990 Police obtained info that D, jail inmate, had made statements to another prisoner that implicated in a murder under investigation. Police placed X, agent, in s cellblock posing as a burglar to engage in conversation about the murder. admits details of the crime.

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Rule Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives voluntary statements. On Miranda Premise that interplay between custody and interrogation triggers the need to provide protections against coercion. Coercion is determined by the suspects perspective; therefore, the requisite coercion is lacking when a custodial suspect encounters a person he believes is a cellmate rather than an officer. Dissent: Miranda was not only concerned with police coercion. It dealt with any police tactics that may operate to compel a suspect in custody to make incriminating stmts w/o full awareness of his constitutional rights. d. Waiver AFTER has Invoked Miranda Rights? Overview What procedures should police follow if asserts his 5th Amendment privilege against selfincrimination? Under what circumstances may police obtain a valid waiver once the custodial suspect asserts one or both of these rights? 2nd Level Protections: Procedures AFTER Suspect Invokes Rights Miranda Cease Interrogation Rule Once warnings given, if suspect indicates in any manner, at any time prior or during questioning, that he wishes to remain silent, the interrogation must cease. Michigan v Mosley 1975 arrested and read Miranda rights. invokes rights. Police cease and place in jail cell. 2 hours later, different officer interrogates about different crime for which not in custody. Officer re reads warnings. signs waiver form and answers questions. Holding Statements admissible based on the circumstances. Relevant Circumstances 2 hours lapsed since initial questioning Different officer Different location Different crime Fresh warnings given Right to Counsel: Edwards Rule Edwards v Arizona 1981 Police read his warnings. originally agrees to talk, then says he wants to speak to an attorney. Interrogation ceased, and taken to jail. Next morning, 2 officers come and questioning resumed. says no talking. Guard says, he had to talk. Officers give fresh warnings, then agrees to answer questions. Edwards Bright Line Rule Once suspect invokes his rights to consult an attorney or to not speak, the suspect is not subject to further interrogation by authorities till counsel has been made available, UNLESS accused himself initiates further communication with the police. Policy Prevent police from badgering into waiving previously asserted Miranda rights. Clarification and Extentension of Edwards Rule Minnick v MS 1990 arrested for murder. Refuses to sign a rights waiver but agrees to answer some questions. Then asserts a right to counsel before he agrees to make more statements. Attorney meets with him. Later, jailer tells that he has to talk and that he could not refuse. Sheriff advises him of rights and makes number of incriminating statements without lawyer present. Rule Once a suspect in custody invokes Miranda rights, police must not only permit the suspect to consult with an attorney, but they may not re-initiate questioning unless counsel is present. Edwards Minnick Summary Rule Once person in custody requests counsel, police may not interrogate suspect about ANY crime, unless: s lawyer present, and valid waiver obtained OR initiates further communications with the police after police obtain a waiver.

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D. EXCEPTIONS TO MIRANDA: 1. Public Safety Exception NY v Quarles 1984 Woman informed 2 officers after midnite that she had been raped and assailant was armed and entered a grocery. Officers enter store and spot fitting description. flees and officers in pursuit. Officer, with 3 backup officers, take into custody and handcuff him. Officer sees empty shoulder holster and asks where the gun was without issuing Miranda warnings. nods and points out gun. Rule If custodial interrogation occurred in a situation posing a threat to public safety, there is not a requirement for Miranda warnings. Analysis Police confronted with immediate necessity of finding the weapon. Test of Public Safety Requirements There must be an objectively reasonable need to protect the police or the public from an immediate danger; There must be an exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime. Police questions must be reasonably prompted by a concern for public safety. BIG POINT The Court remanded this case to see if confession was coerced. This suggests that there is NO PUBLIC SAFETY EXCEPTION to coerced confessions at least not until different facts come along. OConnor Dissent Argues that statement is a violation of Miranda and should be excludedbut the gun is a fruit of Miranda violation and is thus admissible. Criticism Where was exigency? No customers in the store, clerks were at checkout station, and handcuffed and surrounded by 4 officers. No threat of an accomplice. Cost/Benefit This case uses balancing of Miranda warnings; nothing in Miranda to suggest that such is founded on cost-benefit calculation Presumption of Good Faith Court in Miranda presumed the worst of police in interrogation rooms, contrarily the Court here presumed the police were acting with public safety concerns. 2. Fruit of Poisonous Tree Inapplicable US v Patane 2004 arrested outside his home and handcuffed. said he knew his rights and no further warnings given. Government concedes failure to give Miranda warnings. tells officer where gun is located. Rule Following Elstad, Fruit of Poisonous tree is still not applicable to Miranda violations despite Dickerson. Holding Physical evidence derived from unwarned voluntary statements is admissible at trial. Rationale Dickerson Courts reliance on Miranda precedents further demonstrates their continuing validity. The exclusion of unwarned statements is a complete and sufficient remedy for any Miranda violations. Oregon v. Elstad (1985): Cops have arrest warrant. Go to s house, do not tell him about burglary, do not give him Miranda warnings. makes incriminating statement in home. arrested after gives statement. Later, waives Miranda and makes incriminating statement at police station.

a. Issue is whether 2nd statement should be suppressed b/c of 1st statement.

b. Ct said was in custody, so M violation occurred in s house. a. Hold: Fruits doctrine does not apply b/c a Miranda violation is not a core violation of the 5th Amendment. b. Different result if 1st statement was coerced: If 1st statement was not voluntary within the meaning of the 5th Amend, the 2nd statement would be excluded

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c. Test: DP voluntariness test applies. Was the 2nd confession knowingly and voluntarily made. If
so, it will not be invalidated merely because there was a prior, illegally-obtained confession having the same substance. d. Dickerson is current law on constitutionality of Miranda. Is it inconsistent w/ Elstad? There is a circuit split regarding fruit of Miranda violation. 3. Two-Step Interrogations: Qd then Mirandized, the Re-Qd on Previous Statements Missouri v Seibert 2004 Officer specifically another officer to question suspect and not advise her of Miranda rights. Questioned for 30 minutes and gave incriminating statements. Given 20 minute break. Then given Miranda rights, which she waived. Officer confronts her with incriminating statement previously made. then basically repeats said statement. Is 2nd statement admissible? Two Step Technique Successive, unwarned and warned phases of questioning. Could warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Analysis The pause was only 15 minutes. Also, the police did not advise that her prior statement could not be used. References to the previous confession made clear the impression that the further questioning was a continuation of the 1st. DISSENT: If Os subjective intent is N/A to voluntariness (s persp) how can this be wrong? 4. Knowing & Intelligent Waiver Moran v Burbine 1986 arrested for a murder. Through s sister, an attorney calls the police station and tells that he is s counsel if they interrogate. Officer assures lawyer that would not be interrogated. Less than hour later, police conduct series of interviews with regarding the homicide. given Miranda warnings every time and signs waiver waiving right to counsel. never informed that sister had retained counsel or counsels call with police. Holding Police followed Miranda procedures and effectively waived Miranda rights. KEY STATEMENT Even deliberate deception of an attorney could not possibly affect a suspects decision to waive his Miranda rights. Contrast Escobedo There the deception was against the suspect telling him attorney did not want to see him. Here the deception was directed at the attorney! Effective Rule Although a suspect must be informed of his right to assistance of counsel, he is not constitutionally entitled to know that his counsel wishes to see him. Corollary Once the prosecution shows that Suspect fully informed of Miranda rights & Not coerced to waive them THE ANALYSIS IS COMPLETE AND WAIVER VALID AS LAW! Analysis The undisclosed information did not deprive of the knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Due Process Bad police behavior can be caught through Due Process. DISSENT Miranda Footnote 35 states, Police preventing an attorney from consulting his client is a violation of the 6th Amendment right to counsel. Miranda Policy of Taking Advantage of Ignorance This would seem to invalidate confession. 5. Reviving Massiah; Christian Burial Speech Brewer v Williams (Williams I)

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1977 arrested and arraigned in Davenport, IA for murder that occurred in Des Moines. received Miranda warnings shortly after he was arrested, and twice more later. At the arraignment, spoke briefly to an attorney, who advised him to remain silent until he saw his Des Moines lawyer. speaks to Des Moines council, who tells not to say anything until he gets to Des Moines to see him. Police agreed not to question while they transport him to Des Moines. On trip, tell officers in car that he would talk to them about the murder after he arrived at Des Moines and spoke to his attorney. Officers deliberately sought to elicit incriminating information from D. Aware of s religious nature, tell that girl needs Christian burial. leads police to the body. Holding s incriminating statements to the police were obtained in violation of 6th Amendment right to counsel. Analysis Identical to Massiah Adversary proceedings (arraignment) had commenced against D, so right to counsel attached. Massiah kicks in once adversary proceedings have begun. Statements made were the result of deliberate elicitation. D, could have waived right to counsel via Zerbst standard, had NOT waived his right. Why No Valid Waiver? (Zerbst requires Knowing, Intelligent & Voluntary) D had been read Miranda rights 3 times Knew he had a right of assistance of counsel Court agreed he understood the warnings Court assumed disclosures were voluntary No coercion issue Answer: There had been NO WAIVER. Requirement of a Waiver Waiver requires not merely comprehension but relinquishment. Analysis of Waiver s consistent reliance upon the advice of counsel in dealing with authorities refutes any suggestion that he waived that right. not only talked to his lawyers in both cities before he entered the police vehicle, but he told the officers in the car that he would tell them the whole story after he consulted counsel. Change of Mind? might have changed his mind after he heard the Christian burial speech and hence effectuated a valid waiver. Burger: The Court conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present. Majority Rule for Valid Waiver Once the accused asserts his right to counsel, a valid waiver is possible, but only if the officer re-informs the suspect of his right to counsel and secures an express waiver. Powell Concurring Rule Once an accused indicates a desire to talk to counsel, police initiated conversations about the crime should cease. DISSENT & FN: Discovery Doctrine If you would have found it anyway, they get to use it. 6. Elicitation Kuhlmann v Wilson 1986 I, an informant, was placed in a jail cell with instructions to keep his ears open, avoid asking any questions, and to report any statements made by D. I follows instructions. Prosecutor seeks to introduce statements made by to I in the jail. Holding 6th Amendment is not violated by the placement of a police agent in a jail cell with a person against whom formal charges have been brought, as long as the government does not conduct investigatory techniques the equivalent of direct interrogation. Proving Violation must demonstrate that police and their informant took some action, beyond mere listening, that was designed deliberately to elicit incriminating remarks. Distinguish from Henry & Mouton The informant in Henry stimulated conversations with the accused, and from Moulton where informant asked to refresh his memory. Case illustrates the line between active and passive agentsbetween stimulating conversations with the in order to elicit incriminating statements and taking no action beyond listening. 7. Chavez v Martinez

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8. Harmless Error Rule Arizona v. Fulminante: Where there is an explicit promise to protect if he talks, court finds coercion and holds statement to be involuntary. -paid FBI informant offers to protect in prison. confessed. -H: There was a credible threat of violence and thus s will was overborne is such a way as to render his confession the product of coercion. -Rule: Harmless error rule applies when statement is involuntary. 9. Unrelated crimes TX v. Cobb (2001): -D indicted for burglary and counsel was appointed. While in custody, waived M and confessed to murders of woman and child who lived in house he robbed. Both of the crimes are factually related. - Rule: But 6th A is offense specific. Where the same act or transaction constitutes a violation of two distinct statues, the test to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger. - 6A only applies to charged crimes (per Massiah). 6A is charge specific. - This case reverses Brewer v. Williams. - Under Texas v. Cobb, his 6A right to counsel has not attached because he had not yet been charged with the murder. E. RESPONDING TO THE INVITATION (FROM MIRANDA): DOES MIRANDA HAVE A RIGHT TO REMAIN? 1. Dickerson v US 2000 indicted for bank robbery. moves to suppress statement he had made at FBI field office on the grounds he had not received Miranda warnings before being interrogated. Rehnquist Majoritys Conclusion From Miranda Coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements. Miranda served as concrete constitutional guidelines. Analysis of 3501 Touchstone of admission is voluntariness; no warning requirement but a totality of circumstances approach. Issue: Is Miranda constitutional or an exercise in supervisory authority to regulate evidence in the absence of congressional direction? Why Miranda IS Constitutional Opinion Intended to be Constitional concrete constitutional guidelines indicates that majority thought it was announcing a constitutional rule. Invitation to Congress to Protect the Right Against Coerced SelfIncrimination Court has Broadened Application of Miranda Arizona/Roberson Elstad? How do you Explain Miranda Sweeps Broader Than 5th Amendment? This simply recognizes the fact that unreasonable searches under the 4th Amendment are different from unwarned interrogation under 5th Amendment. Shortcoming of Dickerson Opinion All assumed that, "the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases, or offer some ingenious reconciliation of the two lines of precedent." The Dickerson Court did none of these things. Compromise Opinion To write an opinion that the liberals would sign the Chief could not write much or strongly about anything. Fruit of Poisonous Tree/Elstad Did nothing to explain that decision. As Scalia commented, true, but supremely unhelpful Discussion of Miranda as Prophylactic? Rehnquist states, there is some language in our opinions that supports this view; Thats all Rehnquist says! But hes the one that wrote that language in Tucker! Dissent Arguments Scalias Criticism of Miranda Court is Preventing Foolish Confessions

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This is not a valid critique of Miranda. Police can use foolish statements without giving warning up until they begin to interrogate. On the scene questioning? Miranda warnings are NOT required for general on the scene questioning. Miranda also does not prevent foolish waving of right or foolishly talking to someone they dont know is a cop. Miranda is Hostile Towards All Confessions not just Compelled Confessions This confuses Miranda and Escobedo. Escobedo was a much greater threat to interrogations. The logical conclusion of Escobedo would have been to bar any interrogation without a lawyer present. Miranda move to a self-incrimination rationale allowed police room to maneuver. Exclusionary Rules and the Dickerson Dilemma Violation 5th A- Miranda 5th A- Compulsion 5th & 14th A DP/Voluntariness Statement cant be used in Case-in-chief Case-in-chief or any other part of case Same as above Impeachment Use? Yes No No Fruits may be used? Yes No No

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