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Administration of Criminal Justice Harges Spring 2010

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Introduction
PURPOSE
OF

PROCEDURAL RULES

Powell v. Alabama Patterson v. Chicago Police Lt. Burge

KEY PROVISIONS APPLICATION

OF THE

BILL

OF

RIGHTS STATES

OF THE

BOR

TO THE

Incorporation Duncan v. Louisiana

RETROACTIVITY

Searches and Seizures


THE FOURTH AMENDMENT
The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

WHAT

IS A

SEARCH?

In order for there to be a search, there must be action by a government official that interferes with a persons reasonable expectation of privacy. Whenever confronted with a is this a search? question, use the test in Katz below.
Katz v. United States (1967)
Facts: Katz was running a sports book from a public phone booth. The police, without a warrant, used a listening device on the outside of the phone booth to obtain information against Katz. The lower court held that, under current law, there must be a physical intrusion to find the action to be an illegal search and that, because there was no trespass, the recordings were admissible.

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Holding: The SC dismissed the existing trespass rule used by the lower court. The court held that even though the defendant made the calls from a public place, and there was no trespass into the inside of the booth, the defendants reasonable expectation of privacy was violated. The Fourth Amendment protects people, not places. Harlans Concurrence: The test to determine whether a violation has occurred asks: (1) whether defendant had a reasonable expectation of privacy (subjective); and (2) whether society is willing to recognize that expectation as reasonable (objective).

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Open Fields
In Hester v. US (1924), the SC held that the special protection of the Fourth Amendmentdoes not extend to open fields.
Oliver v. United States (1984) reaffirming Hester Facts: Defendant owns a one-hundred acre farm. In the middle of the 100 acres, defendant grows marijuana. On a tip, officers investigate the tip and enter defendants property. Marijuana is found and defendant is charged. He objects on the grounds that his Fourth Amendment rights were violated. Holding: Open fields cannot support a reasonable expectation of privacy and are thus not protected by the Fourth Amendment. Reasoning: "Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance." The Court also cited practical considerations as weighing on its decision, since open fields "usually are accessible to the public," and "no trespassing" signs are generally ineffective at "bar[ring] the public from viewing open fields in rural areas," and "the public and police lawfully may survey lands from the air."

The court in Oliver says that the Fourth Amendment applies if police search a persons home or the curtilage immediately adjacent to the home, but not if the police are searching in an open field. Thus, the SC in Dunn attempted to clarify the distinction between curtilage and open fields which is crucial in deciding if the Fourth Amendment applies
United States v. Dunn (1987) Facts: Dunn was manufacturing phenylacetone and amphetamine in a barn behind his ranch house. DEA agents entered onto respondents ranch property and acquired probable cause which allowed them to get the warrant. Dunn argues that these confirmatory searches violated the 4th Amendment.

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Elements: Four factors are developed to determine if the property was within the curtilage: (1) Proximity of curtilage to the home; (2) whether curtilage is within enclosure surrounding home; (3) the nature of the use to which area is put; and (4) the steps taken by resident to protect area from observation. Holding: the SC holds that the barn is outside of the curtilage of the home and is thus not protected by the Fourth Amendment. Reasoning: Although the factors test is not dispositive, the elements bear upon the central relevant consideration of the Fourth Amendment: whether the area in question is so intimately tied to the home itself that it should be placed under the homes umbrella of protection from illegal searches. Dissent: the dissent is concerned with the inconsistency of this opinion when weighed against the Katz case. In that case, the court found that the Fourth Amendment was about people and their reasonable expectations of privacy, not about places; that the defendants expectations of privacy in the barn were reasonable.

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Aerial Searches
When the police use an aircraft to view defendants property from the air, anything the police can see with the naked eye falls within the plain view doctrine (so long as the aircraft is in public, navigable airspace). California v. Ciraolo (1986)
Facts: Defendant was growing weed in his yard within the curtilage of his property. Police used a low-flying plane to observe this activity in order to obtain a search warrant. Holding: There is no violation of the Fourth Amendment when officers are at a lawful vantage point above the curtilage; if you are exposed to the public, there is no protection. Reasoning: Anyone flying in airspace above the house could have seen everything police saw, so expectation of privacy is not reasonable.

Florida v. Riley (1989) plurality opinion dissents are important here.


Facts: The facts of this case are similar to Ciraolo except the police here used a helicopter and flew much lower (400 ft. vs. 100 ft.) above the home. A Florida county sheriff received a tip that a man was growing marijuana on his property. Unable to see inside a greenhouse, which was behind the defendant's mobile home, the sheriff circled over the property using a helicopter. The absence of two roof panels allowed the sheriff to see, with his naked eye, what appeared to be marijuana growing inside. A warrant was obtained and marijuana was found in the greenhouse. The Florida SC upheld the lower court finding that the aerial search violated his reasonable expectation of privacy.

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Holding: The SC overturned the FSC and held that helicopter surveillance at an altitude of 400 feet did not constitute a search under the Fourth Amendment. OConners Concurrence: Whether or not helicopter had right to be there is not relevant. Instead, OConner held that the court should determine whether helicopter was in an area that the public travel with such regularity that defendants expectation of privacy was not reasonable. She also considered that flying at altitudes lower than 400ft. my be sufficiently rare that there is a reasonable expectation of privacy. Brennans Dissent: Believed that the plurality had misstated the issue, agreeing with O'Connor that the frequency of public air travel was a necessary consideration, and that the key issue in the case was whether ordinary citizens were normally in the air above the defendants home. The vantage point the police enjoyed was not one any citizen could readily share. However, Brennan disagreed with O'Connor in that he believed the defendant did not necessarily need to show that public flight was rare, but rather that the state needed to show that it was common. Blackmuns Dissent: He recognized that five of the nine justices (O'Connor and the four dissenters) had agreed that "the reasonableness of Riley's expectation of privacy depends on the frequency of non-police helicopter flights at an altitude of 400 feet." Blackmun noticed that the main disagreement among these five justices was whether the government or the defendant had the burden of proof in establishing whether public flights above Riley's home were common or rare.

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Thermal Imaging of Homes


Kyllo v. United States (2001) 5 to 4 decision dissent is important
Facts: A federal agent used a thermal imaging device to detect heat emanating off of defendants home. The presence of increased heat sources implied the use of additional lighting for marijuana growth. The agent then obtained a warrant to search the home and marijuana was indeed found. The defendant argues that use of thermal imaging equipment is a search and, in the absence of a warrant, is a violation of his Fourth Amendment rights. Holding: Thermal imaging of a home constitutes a Fourth Amendment "search" and may be done only with a warrant. Reasoning: Obtaining information by sense-enhancing technology that would otherwise require intrusion into constitutionally protected areas constitutes a search, when technology is not in general public use. Furthermore, the information gathered is not visible to the naked eye and the device is capable of determining the intimate details of happenings inside the home. The home is sacred and deserves the highest standard of protection against unreasonable searches.

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Stevens Dissent: The Justice argued that any person could detect the heat emissions; this could be done by simply feeling that some areas in or around the house are warmer than others or observing that snow was melting more quickly on certain sections of the house. Since the public could gather this information there is no need for a warrant and the use of this technique is not unconstitutional. Moreover, the use of the thermal imaging device was merely "off the wall" surveillance and did not detect any "intimate" details of Kyllo's home. It was absurd of Kyllo to try to incorporate something as intangible, fluid and public as heat into the private sphere. "Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building."

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Searches of Trash
There is no reasonable expectation of privacy in what a person chooses to discard outside of his curtilage. California v. Greenwood (1988)
Facts: Local police suspected defendant was dealing drugs from his residence. Because the police did not have enough evidence for a warrant to search his home, they searched the garbage bags defendant had left at the curb for pickup. The police uncovered evidence of drug use, which was then used to obtain a warrant to search the house. That search turned up illegal substances, and Greenwood was arrested on felony charges. Holding: Garbage placed at the curbside is unprotected by the Fourth Amendment. Reasoning: There was no reasonable expectation of privacy for trash on public streets "readily accessible to animals, children, scavengers, snoops, and other members of the public." The Court noted that the police cannot be expected to ignore criminal activity that can be observed by "any member of the public." Brennans Dissent: A trash bag is a common repository for ones personal effects and should inevitably be associated with an expectation of privacy. The possibility that meddlers might rummage through the trash should not negate the expectation of privacy. Note: It is important to note that the SC has not yet ruled on a case where the garbage was still inside the curtilage of the home.

Observation and Monitoring of Public Behavior


Use of Beepers/Tracking Devices
United States v. Knotts (1983) Facts: A beeper was placed in a drum in defendants possession so that he could be tracked by law enforcement.

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Holding: The monitoring of the beeper did not violate the 4th Amendment when it revealed no information that could not have been obtained through visual surveillance. Reasoning: A person traveling on a public thoroughfare has no reasonable expectation of privacy in his movements from one place to another. United States v. Karo (1984) Facts: Agents installed an electronic beeper in a can of ether with the consent of the owner and tracked it as it was moved between various residences and commercial storage lockers. The investigators determined the location of the can and obtained an arrest warrant. Holding: The use of an electronic beeper device to monitor a can of ether without a warrant constituted unlawful search and seizure. Reasoning/Distinction from Knotts: There was an illegal search in this case because the beeper was used to determine whether an object was within the suspects home; it revealed a fact that could not have been visually verified. This was a violation of defendants subjective and objective expectation of privacy within his house.

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Public Conversations
United States v. White (1971) plurality opinion of four Facts: The court here considered whether there was a search when a government informer carrying a radio transmitter engaged in a conversation with a suspect. Holding: Listening in on a conversation is not a search when at least one of the parties involved is aware of the recording. Reasoning: When a person is talking in pubic, and loud enough for another to hear, there can be no reasonable expectation of privacy as to the subject of the conversation. However, when a person makes reasonable efforts to guard against others from hearing, efforts to listen are in violation of the Fourth Amendment. Note: It is still questionable as to whether a search has taken place when neither party is aware of the recording.

Pin Registers
Smith v. Maryland (1979) Facts: McDonough was robbed and began receiving threatening phone calls from a man identifying himself as the robber. The police used a pen register (trace) to monitor the calls and record the numbers. The defendant argues that he has a reasonable right to privacy in the numbers he dials and any recording of such numbers is a search in violation of that right.

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Holding: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Reasoning: Although the conversations that you have on the phone are protected, there is no reasonable expectation of privacy in the phone numbers you dial and receive calls from. This is information that he voluntarily turns over to a third party (similar to Greenwood reasoning). Note: A similar reasoning applies to bank records. The court has found no reasonable expectation of privacy because you are willingly transacting with a third party, the bank. Statute: In 1986, Congress enacted a statute that now prohibits the installation or use of pen registers without a court order.

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Use of Dogs to Sniff for Contraband


There is no overall answer as to whether it is a search if the police use drugsniffing dogs. However, the court has found a few particular contexts in which it held that use of a drug-sniffing dog is NOT a search. For instance, in United States v. Place (1983), the court held that a canine sniff of closed luggage is not a search. Illinois v. Caballes (2005)
Facts: Trooper stopped defendant for speeding, and police drug team member headed to scene. While trooper was writing ticket, police drug officer walked dog around car, and dog alerted at truck. Marijuana was found in truck. Holding: A dog sniff conducted during a concededly lawful traffic stop, and that reveals no information other than the location of a substance that no individual has any right to possess, does not violate the Fourth Amendment. Reasoning: The only information that dogs reveal is whether or not there is contraband present, and nobody has an expectation of privacy in the contraband. Dog sniff is brief, non-intrusive, and only reveals limited information. Souter and Ginsburg Dissents: Both justices were concerned with the suspicion-less search that was performed by the dogs during a routine traffic stop. Ginsburg would have applied the Terry Stop doctrine to the traffic stop and required reasonable suspicion for the police to transform the routine traffic stop into a more extensive search for drugs. "Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population. Today's decision clears the way for suspicion-less, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Motorists would not have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green."

THE REQUIREMENT

FOR

PROBABLE CAUSE

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Definition
The classic definition of PC as stated in Carroll v. United States is whether the facts and circumstances are such to warrant a man of prudence and caution in believing that the offense had been committed.

What is Sufficient Belief to Meet the Standard for PC?


The SC stated that in dealing with PCwe deal with probabilities. However, the court never said what probabilities are sufficient. The court simply said that PC is something more than bare suspicion and something less than evidence which would justify conviction. What informant information is sufficient to constitute PC?
Aguilar-Spinelli two-part test: (1) was the informant credible likely they were telling the truth? And (2) was the informant reliable was it likely that the informant actually had the knowledge? If the informant did not meet these requirements, there was not probable cause. This was the test until the court departed from it in Illinois v. Gates below. There the court emphasized the need to consider the totality of the circumstances. This is now the general approach to determining whether there is PC, even beyond the issue of informant reliability.

Illinois v. Gates (1983)


Facts: The police received an anonymous tip that Gates was dealing drugs. The tip detailed the process that Gates used and his movements that would occur in the future. The police independently corroborated the details in the tip, obtained a warrant, and searched Gates care where they found marijuana. Procedural History: The Illinois court suppressed the evidence for lack of probable cause. Using the Aguilar-Spinelli test, they found that neither the veracity of the claims nor the basis of knowledge were clear enough to find PC. Holding: The court found no constitutional violation in this case; probable cause was sufficient. Reasoning: Justice Rehnquist argued that an informant's veracity, reliability, and basis of knowledge are important in determining probable cause, but that those issues are intertwined and should not be rigidly applied. He argued that the "totality-of-the-circumstances" approach to probable cause was the correct one to glean from Spinelli, and that the law enforcement officials who obtained a warrant abided by it in this case.

Maryland v. Pringle (2003)

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Facts: A police officer stopped a car for speeding, searched the car, and seized money from the glove compartment and cocaine from behind the back-seat armrest. The officer arrested the car's three occupants after they denied ownership of the drugs and money. A state court sentenced Pringle, the frontseat passenger, for possessing and intending to distribute cocaine after he signed a written confession. The state appellate court reversed the conviction, holding that the mere finding of cocaine in the back armrest when Pringle was in the front-seat of a car being driven by its owner was insufficient to establish probable cause for arrest for possession. Issue: Does an arrest of a front-seat passenger in a car driven by its owner, after police find cocaine in the car's back armrest, lack probable cause and violate the Fourth Amendment's prohibition of unreasonable searches and seizures? Holding: The arrest did not violate defendants Fourth Amendment rights as the officer had probable cause to arrest him. Reasoning: As it is an entirely reasonable inference from the facts here that any or all of the car's occupants had knowledge of, and exercised dominion and control over, the cocaine, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.

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Is it an Objective or Subjective Standard?


A crucial question is whether PC focuses on the subjective knowledge and intent of the officer or the objective intent and knowledge of the reasonable officer under similar circumstances. Whren v. United States (1996)
Facts: Defendants car was stopped due to a traffic violation. During the ensuing stop, the officer saw drugs in the car and arrested defendant. Defendant argues that the officers reason for pulling his over in the first place was because he was black; that he officer lacked either reasonable suspicion or probable cause to stop them on suspicion of drug dealing. Holding: Questions of probable cause are reviewed under an objective standard and under that standard, the officers conduct was reasonable. Reasoning: Regardless of whether the officer pulled the defendant over for his own subjective reasons, there was still a valid, objectively reasonable traffic offense to warrant the stop.

THE WARRANT REQUIREMENT


Function:
Warrants function as a check on the police.
Limit the police conduct by restricting the scope of the search or seizure. Issued by a neutral and detached magistrate

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The scope of the search should be no greater than necessary to effectuate the object of the search

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Two views on the warrant requirement:


A search or arrest requires probable cause, and a search not supported by probable cause/warrant is for the most part per se unreasonable. Prevailing understanding until 1970s The alternate view is that the two clauses are independent: Warrant clause means that police need to have probable cause when they seek a warrant. But they dont need to seek a warrant when their actions are governed by probable cause.

What Information Must be Included in the Application for a Warrant?


The warrant must have enough particularity to distinguish between things that the police are seizing, and things that they are not seizing.
Generally, less specificity is demanded regarding contraband. More specificity is required for stolen goods or items that are given first amendment protection (books or paper).

The particularity requirement is evaluated by assessing what police knew or should have known. Warrant must be based on probable cause and supported by oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized,
The affidavit supporting the request for a warrant must include information that provides a basis for probable cause.

Warrant must specify the time period for its execution.


The officer must execute the warrant between 6:00AM and 10:00PM unless the judge, for good cause, authorizes execution at another time.

What Form Must the Warrant Take?


Andresen v. Maryland (1976)

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Facts: Investigators concluded that there was probable cause to believe that Andresen had committed crime of false pretenses. They applied for, and were issued, warrants to search law office and corporation office. The warrant included a residual clause at the end of it. Andresen moved to suppress seized documents contending that, because of the residual clause, the warrants were too general and therefore invalid. General warrants are prohibited by the Fourth Amendment. Holding: The defendants 4th amendment rights were NOT violated when the warrant specifically stated what documents could be taken, although the final clause was extremely vague, and seemed all encompassing. Reasoning: The warrant had an exhaustive list of things that could be seized, but a vague phrase, together with known fruits of crime at this time unknown. This is unclear but obviously refers to only the Lot 13 case when read in the totality of the document.

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Groh v. Ramirez (2004) 5 to 4 decision dissent is important


Facts: Petitioner searched respondents home pursuant to warrant that failed to describe the person or things to be seized. The application, however, particularly described the place to be searched, but the warrant did not refer to the application. Holding: Unless the particular items described in the affidavit are set forth in the warrant (or incorporated by reference and attached), the warrant is invalid. Reasoning: This requirement lets the person being searched know what is being searched for. It also helps subsequently reviewing courts to know what the magistrate authorized the police to do. The mere fact that the magistrate issued the warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiants request. Thomas Dissent: There is a difference between a search conducted pursuant to a defective warrant, and a warrantless search. If the search is conducted pursuant to a defective warrant, it may still be reasonable and thus constitutional.

What are the Requirements in Executing Warrants?


How May Police Treat Those Who Are Present When a warrant is Being Executed?
Ybarra v. Illinois (1979) The SC held that a person who happens to be present in the premises subject to search cannot be searched as well just by virtue of being there. Michigan v. Summers (1981) The SC held that, when there is a search of a residence, those present at the time may be detained. Allowing such detention serves many purposes including: preventing flight; minimizing risk; and helping complete the search in the case of any questions.

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Muehler v. Mena Facts: Police detained Mena and others in handcuffs while they searched the house they occupied. During the detention they asked Mena about her immigration status. The police had a search warrant to search the premises for deadly weapons and evidence of gang membership. Mena sued the officers in federal district court for violating her Fourth Amendment right to be free from unreasonable seizure. The district court ruled for Mena. The Ninth Circuit affirmed, holding that using handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers' questioning of Mena about her immigration status also violated the Fourth Amendment. Holding: Mena's detention did not violate the Fourth Amendment. Reasoning: Officers with a search warrant for contraband had authority to detain occupants of the premises during the search in order to minimize any risk to officers. Handcuffing Mena was also justified by officer safety concerns and because officers had to deal with detaining multiple occupants. The Court further held that the officers' questioning of Mena about her immigration status during her detention did not violate the Fourth Amendment. The officers did not need to have reasonable suspicion to question Mena. Moreover, the Court had held repeatedly that mere police questioning did not constitute a seizure.

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Do Police Have to Knock and Announce before Searching a Dwelling?


Absent exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant Wilson v. Arkansas (1995) Facts: Wilson sold illicit narcotics to undercover agents of the Arkansas state police. Police officers then applied for and obtained warrants to search Ms. Wilson's home and to arrest her. When the police arrived, they found the main door to Ms. Wilson's house open. The officers opened the unlocked screen door and walked in, identified themselves as police officers, and said that they had a warrant. Ms. Wilson's attorney filed a motion to suppress the evidence seized during the search, claiming it was invalid on the grounds that the officers had failed to "knock and announce" before entering. Holding: A unanimous Court held that the common-law "knock-and announce" principle forms a part of the Fourth Amendment reasonableness inquiry and should have been used in this instance. Reasoning: "Given the longstanding common-law endorsement of the practice of announcement, and the wealth of founding-era commentaries, constitutional provisions, statutes, and cases espousing or supporting the knock-and-announce principle. The Amendment's Framers thought that, whether officers announced their presence and authority before entering a dwelling was among the factors to be considered in assessing a search's reasonableness." Countervailing law enforcement interests, such as officer safety, may, however, establish the reasonableness of an unannounced entry.

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Richards v. Wisconsin (1997) Holding: After noting the general importance of following conventional "knock-and-announce" procedures, the Court held that in those circumstances when police have good reason to suspect that announcing their presence and intentions may be dangerous, futile, or result in the destruction of evidence, a "no-knock" entry is justified. Reasoning: The Court added that by immediately closing the door after witnessing the officers outside it, Richards gave police sufficient justification for breaking into his room, especially considering the disposable nature of the substances they were seeking. In its most recent cases concerning the knock and announce rule, the court has been deferential to law enforcement. United States v. Banks (2004) the court held that the police did not violate the Fourth Amendment when they waited only 15 to 20 seconds if they reasonably believed that waiting longer would provide the opportunity for the suspects to destroy contraband. Hudson v. Michigan (2006) more dramatically and more importantly, the court in this case held that the exclusionary rule does not apply to evidence gained after police violate the knock and announce requirement.

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What if there are Unforeseen Circumstances or Mistakes While Executing a Warrant?


Maryland v. Garrison (1987) Facts: Police officers obtained and executed a warrant to search McWebbs apartment on 3rd floor of 2036 Park Ave. At the time, the police reasonably believed that there was only one apartment on the 3rd floor. After finding drugs, the officers realized that they were actually in another apartment on the third floor and that the floor was in fact divided into two apartments. Issue: If a mistake is made in executing a warrant, is the search permissible so long as the police action is reasonable? Holding: Judging the constitutionality of the officers conduct in light of information available at the time they acted, the warrant was valid when it was issued. Reasoning: The officers were required to stop their search when the realized their mistake, which they did. Prior to their realization, their conduct was consistent with the warrant. Blackmun Dissent: The warrant was limited to the third floor apartment of McWebb; the search of the additional apartment was warrantless and presumed unreasonable. LA Country v. Rettele (2007)

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Facts: Deputies obtained a valid warrant to search a house, but were unaware that suspects being sought had moved out 3 months prior. Officers knocked and announced and found two occupants in the bedroom. They ordered the residents, who were sleeping, unclothed, out of bed and required them to stand a few minutes before allowing them to dress. Plaintiffs bring suit claiming that the officers violated their Fourth Amendment right to be from unreasonable search and seizure. Holding: The court held no violation of plaintiffs Fourth Amendment Rights Reasoning: Deputies searching a house, where they believe a suspect might be armed, possess the authority to secure premises before deciding whether to continue with search. There is no allegation that the deputies prevented residents from dressing longer than necessary to protect their safety. And although the warrant stated that the suspects were black (and the occupants found were white), it was still reasonable to believe that the occupants could have been comingling with the suspects.

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Arrest in Anothers Home


If the police have an arrest warrant, they are within their rights to enter the suspects home to arrest him. However, if the suspect is in another persons home, the police need an arrest warrant for the suspect as well as a search warrant to enter the other persons home. Even so, the suspect cannot use a warrantless search of the friends home to invalidate his own arrest because the suspect has no standing.

No warrant is necessary to arrest someone in public.

EXCEPTIONS

TO THE

WARRANT REQUIREMENT

In creating exceptions to the warrant requirement, the Court has balanced the privacy interests involved against the extent to which adhering to the warrant requirement would unduly hamper effective law enforcement. Searches Incident to Arrest
Chimel v. California (1969)
Facts: Three officers arrived at home of petitioner with warrant authorizing his arrest. He was not present, and his wife let officers in. They waited for him to return from work, and then handed him the arrest warrant and searched the premises based on the lawful arrest. The officers seized numerous items. Rule: Police, while performing a valid, in home, custodial arrest, may search the area within the immediate control of the arrestee. Holding: The search of Chimel's house was unreasonable under the Fourth Amendment.

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Reasoning: Searches "incident to arrest" are limited to the area within the immediate control of the suspect (the area in which he might access a weapon or destroy evidence). While police could reasonably search and seize evidence on or around the arrestee's person, they were prohibited from rummaging through the entire house without a search warrant. The Court emphasized the importance of warrants and probable cause as necessary bulwarks against government abuse. Whites Dissent: That the search included places outside the reach of the defendant should not be enough to prove such searches unconstitutional. When there is probable cause to search and it is impractical for one reason or another to get a search warrant, then a warrantless search may be reasonable.

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United States v. Robinson (1973)


Facts: Robinson is pulled over for an expired tag. He is arrested for operating after revocation and obtaining a permit by misrepresentation. The officers conducted a custody search incident to arrest and found heroin. Holding: Police may search a person incident to arrest regardless of the crime that led to the arrest. Reasoning: The search incident to arrest is not based on the probability in a particular situation that weapons or evidence would in fact be found. The search is reasonable even if there is no reason to believe that the individual has weapons. The court, therefore, rejected the claim that only a frisk for weapons was permissible when a person is arrest for a traffic violation.

Knowles v. Iowa (1998)


Facts: Knowles was stopped for speeding. The officer issued a citation and then conducted a full search, and found marijuana. Holding: The Fourth Amendment does not authorize an officer to conduct a full search of a car incident to a citation. Reasoning: For a search incidental to an arrest, there must actually be an arrest. The reasons are (1) to disarm suspect to take him into custody, and (2) to preserve evidence for trial. Neither is applicable if there is only a citation. Once issued the citation, all evidence necessary for that offense had been obtained.

Searches Made in Hot Pursuit


Warden, MD Penitentiary v. Hayden (1967)
Facts: Armed robber entered business premises and stole money and ran. Cab drivers followed the man and called police and told them that the man entered a residence. Police searched the premises and seized items related to the search.

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Holding: Neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Reasoning: the defendant entered the residence less than 5 minutes before police did. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Only a thorough search of the house could have insured that the defendant was the only occupant and that police had control of all weapons which could be used against them.

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Payton v. New York (1980)


Facts: A New York statute authorized police to enter a private residence without a warrant to make a routine felony arrest. Police had probable cause to believe that Payton had committed a murder. Without a warrant, police entered his home to arrest him pursuant the statute. Payton was not home, but a gun was in plain view in the house and later used as evidence against him. Holding: The Court holds that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspects home to make a routine felony arrest. Reasoning: It is the basic principal of the Fourth Amendment that warrantless searches and seizures inside a home are presumptively unreasonable. Absent exigent circumstances, the threshold of a home may not reasonably be crossed without a warrant. Whites Dissent: White does not believe the Fourth Amendment was intended to outlaw the types of police conduct at issue in this case. I cannot join the Court in declaring unreasonable a practice which has been thought entirely reasonable by so many for so long. After knocking and announcing, police may make a daytime arrest without a warrant when there is probable cause that the suspect committed a felony and is present in the house.

Plain View (this is a seizure doctrine, not a search doctrine)


Coolidge v. New Hampshire: Police may, without a warrant, seize evidence that is in plain view, provided that:
The evidence is initially viewed from a lawfully gained vantage point (police were allowed to be there by warrant, consent, or hot pursuit); The incriminating nature of the evidence is immediately apparent (this is a probable cause standard); and Arizona v. Hicks (1987) Police entered a home to execute a search warrant. They saw stereo equipment that they thought was stolen but they had no probable cause to support this. They moved the stereo equipment to find a serial number and determine if the items were stolen. The Court held that moving the equipment constituted a search separate and apart from the search as part of warranted search. The plain view doctrine did not apply in this case. The officers needed probable cause for this search.

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The encounter of that particular evidence was inadvertent (this requirement is not longer necessary since the Horton case below).

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Horton v. California (1990)


Facts: Police executed a search warrant of defendants home to look for stolen jewels. The police were also knew they might find a gun. The gun, however, was not included on the search warrant. They seized the gun which was lying in plain sight. Defendant argued that, because the finding of the gun was not inadvertent, the seizure was invalid. Holding: The court held that inadvertent discovery is not required. Reasoning: Difficult standard to define. As long as the officers are lawfully located in a place from which the object can be plainly seen and the criminal nature of the evidence is immediately apparent, then the conditions are satisfied for warrantless seizure. Brennans Dissent: In eschewing the inadvertent discovery requirement, the majority ignores the Fourth Amendments express command that a warrant describethe things to be seized.

Minnesota v. Dickerson (1993) the plain touch doctrine


Facts: Defendant exited an apartment building with a history of cocaine trafficking. He spotted police officers and turned to walk in the opposite direction. In response, the officers commanded Dickerson to stop and proceeded to frisk him. An officer discovered a lump in Dickerson's jacket pocket, and, upon further tactile investigation, formed the belief that it was cocaine. The officer reached into Dickerson's pocket and confirmed that the lump was in fact a small bag of cocaine. Defendant argues that the seizure of the cocaine was unlawful under the Fourth Amendment. Holding: The Fourth Amendment permits the seizure of contraband detected through a police officer's sense of touch during a protective pat-down search. Reasoning: There has been no invasion of a suspects privacy beyond that already authorized by the officers search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

The Automobile Exception


One of the most important exceptions to the warrant requirement is that cars and other movable vehicles can be searched without a warrant if there is probable cause. The Exception and its Rationale
Carroll v. United State (1925) one of the first articulations of the warrant requirement; the SC stressed that a warrant was not needed to search a car because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

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California v. Carney (1985) this was a significant extension of Carroll case because it involved a mobile home that was realistically no longer mobile. Facts: Police had probable cause to search a mobile home for drugs. Without a warrant, they entered the mobile home to conduct a search for the drugs which they found. Holding: The vehicle was so situated that an objective observer would conclude that it was being used as a vehicle and not a residence. Therefore, the auto exception to the warrant requirement applies. Reasoning: Although the case deals with a mobile home (where the utmost expectation of privacy exists), the justifications for the auto exception are still in place: (1) the vehicle is readily mobile; (2) there is a reduced expectation of privacy (even if it can also be a home) due to the range of police regulation for its use as a motor vehicle.

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Searches of Containers in Autos


California v. Acevedo (1991) Facts: Police have probable cause to believe that a container (brown paper bag) within defendants car contains drugs. The officers stopped the car, searched the bag, and found marijuana. At his trial, Acevedo made a motion to suppress the marijuana as evidence, since the police had not had a search warrant. Defendant cited a previous SC ruling (Chadwick) that stated that officers needed a warrant to search a closed container within a car. Holding: The "automobile exception" to the Fourth Amendment's general search-warrant requirement is broad enough to cover a situation where the police only have probable cause to believe there is evidence in a specific movable container within the car.

Searches of Autos Incident to Arrest


New York v. Belton (1981) Holding: When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment (not the trunk or under the hood) of that automobile. Reasoning: The rationale is that this search is for the officers safety and the preservation of evidence; no probable cause is needed. Thornton v. United States Facts: Here, the defendant was a recent occupant of the vehicle but officers contact with him originated from outside the vehicle. Holding: A recent occupant may still be treated as an occupant for the purposes of a search incident to an arrest.

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Reasoning: The proximity to the car, whether having just exited or about to enter, still provides for the circumstances necessary to protect officer safety and evidence. "Once an officer determines there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment." Arizona v. Gant (2009) Facts: Gant was apprehended by Arizona state police on an outstanding warrant for driving with a suspended license. After the officers handcuffed Gant and placed him in their squad car, they went on to search his vehicle, discovering a handgun and a plastic bag of cocaine. At trial, Gant asked the judge to suppress the evidence found in his vehicle because the search had been conducted without a warrant in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. The judge declined Gant's request, stating that the search was a direct result of Gant's lawful arrest and therefore an exception to the general Fourth Amendment warrant requirement. Issue: Is a search conducted by police officers after handcuffing the defendant and securing the scene a violation of the Fourth Amendment's protection against unreasonable searches and seizures? Holding: Police may search the vehicle of its recent occupant after his arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest. Reasoning: "warrantless searches are per se unreasonable" and subject only to a few, very narrow exceptions. Here, Mr. Gant was arrested for a suspended license and the narrow exceptions did not apply to his case. Alitos Dissent: the majority improperly overruled its precedent in New York v. Belton which held that "when a policeman has made a lawful arrest he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." The previous rule was workable, easier for judges and officers to apply.

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Inventory Searches
Police may inventory property when (1) it is lawfully in the possession of the police and (2) established procedures are followed. This is an exception to both the probable cause and warrant requirements.
Three bases for this exception are: (1) the protection of the owners property; (2) the protection of the police against false claims; and (3) the protection of police from potential danger.

Vehicle Inventory Search


South Dakota v. Opperman (1976) 5 to 4 decision

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Facts: Opperman's car was found illegally parked on a street in Vermillion, South Dakota, in the early morning hours of December 10, 1973. Acting pursuant to police procedures, Opperman's car was impounded. Because there were sundry items scattered about in the passenger cabin, the police decided to inventory the contents of the car. During the inventory, police found some marijuana in the glove compartment. Holding: Warrantless routine inventory searches of automobiles impounded or otherwise in lawful police custody, pursuant to standard police procedures, are reasonable and not prohibited by the Fourth Amendment. Reasoning: These procedures protect the owner's property from vandalism, protect the police from disputes about damage to the property, and protect individual officers from unknown danger associated with vehicle storage. And because inventory searches are not intended to discover evidence of criminal activity (even though discovering such evidence might incidentally result), the abuses against which the warrant requirement is intended to protect did not arise in the case of inventory searches. Marshalls Dissent: A diminished expectation of privacy does not mean there is no expectation of privacy at all. Although protecting valuables inside an impounded car is important, searching each and every impounded car without the owner's consent exceeded the owner's privacy interest.

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Personal Inventory Search


Illinois v. Lafayette (1983) Facts: Defendant is arrested for fighting. At the police station, his belongings are inventoried and amphetamines are found in his bad. Holding: Police may, as part of the procedure incident to incarcerating an arrested person, search any article in the persons possession, in accordance with established inventory procedures. Reasoning: The purposes for vehicle inventory above are applicable to a personal inventory at a police station. In fact, the court felt that the governmental interests underlying a stationhouse search can be greater than those of search incident to an arrest.

Border Crossing and Checkpoints


The government has broad authority to conduct warrantless searches of people, vehicles, and mail entering the border. Inspection of Cars at the Border
United States v. Flores-Montano (2004)

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Facts: Defendant was crossing the border into the states when he was stopped and his vehicle was searched. The agent tapped the gas tank which sounded solid. The gas tank was disassembled and marijuana was found. Defendant moved to suppress the marijuana finding on Fourth Amendment grounds; he argued that the search that yielded the marijuana finding was intrusive and non-routine and therefore required reasonable suspicion Holding: The government had authority to inspect a vehicle's fuel tank at the border without suspicion. Reasoning: The court balanced the interests of the government to protect the boarders and prevent illegal items entering the country versus the burden on the defendant. As the disassembly and reassembly of the tank involves a brief procedure, it is justified by the governments paramount interest in protecting the border.

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Inspection of Mail Entering the Country


United States v. Ramsey (1977) Facts: Custom officials, with reasonable cause to suspect a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a warrant. Holding: Officers can open international envelopes coming into this country without a warrant, probable cause, or even reasonable suspicion. Reasoning: The court analogizes to the interests in protecting the border and finds nothing the rationale which suggests that the mode of entry will be critical in the balance of protection versus reasonable search.

Border Searches of a Person


Though border searches of cars and mail require no basis of suspicion, more intrusive searches (body cavity, detentions) require at least reasonable suspicion. United States v. Montoya-Hernandez (1985) Facts: Defendant is detained at the airport. She had made several trips from Miami to LA, she had a lot of cash, no hotel reservation, and no family in the states. She was suspected of smuggling drugs in her colon so she was held for several hours waiting for her to pass them. After 16 hours, they finally x-rayed her; they found 88 balloons in her colon. Holding: Detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if custom agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal.

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Reasoning: the facts, and their rational inferences, known to the customs officials clearly supported a reasonable suspicion that respondent was an alimentary canal smuggler. Again, using the balancing test, there are diminished expectations of privacy at the border, at least relative to the governments interest in stopping smugglers. Brennans Dissent: Holding someone in indefinite, involuntary, incommunicado isolation without probable cause or a judicial warrant violates the constitution regardless of suspected criminal activity.

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Checkpoints
Michigan Dept. of State Police v. Sitz (1990)
Facts: The case involves a police checkpoint of all vehicles passing through in which drivers are briefly examined for signs of intoxication. Defendant was not stopped by the checkpoint but challenges its constitutionality. Holding: The Court holds that a warrantless, suspicion-less checkpoint designed to detect drunk driving is permissible. Reasoning: Advancing a state interest in preventing drunk driving is outweighed by the brief stop of individual motorists. Everyone is stopped; procedure follows established guidelines; and only if police have reasonable suspicion is anyone given secondary examination.

City of Indianapolis v. Edmond (2000)


Facts: the City of Indianapolis began to operate vehicle checkpoints in an effort to interdict unlawful drugs. At each roadblock, one office would conduct an open-view examination of the vehicle. At the same time, another office would walk a narcotics-detection dog around the vehicle. Each stop was to last five minutes or less, without reasonable suspicion or probable cause. Holding: because the checkpoint program's primary purpose was indistinguishable from the general interest in crime control, the checkpoints violated the Fourth Amendment. Reasoning: "We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." Rehnquists Dissent: the reasonableness of the city's roadblocks depended on whether they served a "significant state interest with minimal intrusion on motorists."

Consent
A search is permissible without a warrant or probable cause if undertaken pursuant to valid consent
What constitutes valid consent? Consent must be voluntary/not coerced by police

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Who has authority to authorize consent? US v. Matlock: One resident may validly consent to a search of a shared residence if the other is not present. Georgia v. Randolph: If one resident refuses to consent, that refusal is dispositive as to him, regardless of the consent of the other occupant. What is the scope of a consensual search? Defined by the consent itself; Scope limited by the consenter. What would a reasonable person have understood from the exchange? Example: If consent to search for drugs, reasonable to expect officer to search anywhere drugs may be present. Subject of search may limit search to certain areas, to a fixed duration, or may end search at any time (unless police have found probable cause to continue search).

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Schneckloth v. Bustamonte (1973)


Facts: Officer stopped vehicle for burnt headlight. Officer asked if he could search the car, to which driver said sure, go ahead. Officer then found three stolen checks. Issue: What must the prosecution prove to demonstrate that consent was voluntarily given? Holding: The question of whether consent to a search was voluntary and not the result of duress or coercion is a question of fact to be determined from the totality of the circumstances. Reasoning: Account must be taken of subtly coercive police questions, as well as possible vulnerability of person who consents. Proof of knowledge of a right to refuse consent is not a prerequisite in demonstrating voluntary consent.

What constitutes coercion?


Example: Threats, show/application of force Arizona v. Fulminante: Positive inducements can be regarded as coercion (will give X if you consent). Bumpers v. North Carolina: False assertions of authority by police render consent involuntary. Proper assertions of authority are permitted (i.e. Can we search your house? If not, we will go get a warrant; must have probable cause to get that warrant).

Georgia v. Randolph (2006)

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Facts: Randolph was arrested for drug possession after police found cocaine in his home. The police did not have a warrant to search the home, but Randolph's wife consented to the search. Randolph was also present at the time of the search, however, and objected to the police request. He argued that the search was unconstitutional because of his objection to the search, while the prosecution argued that the consent of his wife was sufficient. Holding: when two co-occupants are present and one consents to a search while the other refuses, the search is not constitutional. Reasoning: Compared the reasonableness of such a search to a more casual interaction. Souter wrote, "it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions." A police search in such circumstances, Souter wrote, would therefore not meet the reasonableness requirement of the Fourth Amendment.

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Searches of Those on Probation and Parole


The SC has often upheld warrantless and suspicion-less searches of those on probation or parole. Many times the person has consented to such searches as a condition for their release. Regardless, the court has emphasized the diminished expectation of privacy for those individuals and governments interest in preventing recidivism. United States v. Knights (2001) probation case
Facts: Defendants probation order included the following condition: that Knights would "submit his...person, property, place of residence, vehicle, and personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Holding: The warrantless search of Knights, which was supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.

Samson v. California (2006) parole case


Facts: A police officer stopped and searched Samson on the street in San Bruno, California. The officer had no warrant and later admitted he had stopped Samson only because he knew him to be on parole. The officer found that Samson was in possession of methamphetamines. Samson was arrested and charged with drug possession in state court. At trial Samson argued the drugs were inadmissible as evidence, because the search had violated his Fourth Amendment rights. Holding: The search is valid; Samson "did not have an expectation of privacy that society would recognize as legitimate."

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Reasoning: An inmate who chooses to complete his sentence outside of direct physical custody, however, remains in the Department of Correction's legal custody until the conclusion of his sentence, and therefore has significantly reduced privacy rights. In this case, Samson had also been required, as a condition of his parole, to sign an agreement that he would be "subject to search or seizure by a parole officer or other peace officer..., with or without a search warrant and with or without cause." This written consent to suspicionless searches, along with his already reduced privacy interests as a parolee, combined to make the search constitutional.

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Special Needs Searches


These searches generally involve searches for reasons other than criminal law enforcement. Administrative Searches
Camara v. San Francisco (1967) administrative search of homes An inspector of any type, unless responding to an emergency situation or after obtaining consent, needs a warrant in order to enter someones home to do an inspection. However, you do not need individualized suspicion or probable cause to obtain that warrant. You must merely show that the regulations require the inspection regardless of whether or not you believe the house is in violation. New York v. Burger (1987) administrative search of business Facts: In this case, there is an inspection of an auto junkyard. Holding: Although there is an expectation of privacy on commercial property, that expectation is particularly attenuated when the business participates in a closely regulated industry. Reasoning: A warrantless search of this type of property is reasonable when: (1) there is a substantial government interest; (2) the inspection is necessary to further the regulatory scheme; and (3) the inspection program (statute) must provide a constitutionally adequate substitution for a warrant (i.e., knowledge of the search, discretion of the inspectors). The statute must act as a substitute for a warrant by limiting the timing, scope, and place of the search.

Drug Testing
Vernonia School Dist. v. Acton (1995)

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Facts: An official investigation led to the discovery that high school athletes in the Vernonia School District participated in illicit drug use. School officials were concerned that drug use increases the risk of sports-related injury. Consequently, the Vernonia School District of Oregon adopted the Student Athlete Drug Policy which authorizes random urinalysis drug testing of its student athletes. James Acton, a student, was denied participation in his school's football program when he and his parents refused to consent to the testing. Holding: Random drug testing of high school athletes does not violate the reasonable search and seizure clause of the Fourth Amendment. Reasoning: The reasonableness of a search is judged by "balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests." In the case of high school athletes who are under State supervision during school hours, they are subject to greater control than over free adults. The privacy interests compromised by urine samples are negligible since the conditions of collection are similar to public restrooms, and the results are viewed only by limited authorities. Furthermore, the governmental concern over the safety of minors under their supervision overrides the minimal, if any, intrusion in student-athletes' privacy. OConners Dissent: the Court's decision did not rest on the requirement of individualized suspicion and did not adequately explain why individualized suspicion was not required in this context. Historically, the Court had disapproved of blanket searches, particularly in the criminal context, where the search was more than minimally intrusive. More recently, the Court had limited its willingness to dispense with the individualized suspicion requirement only in particularly dangerous contexts, such as prisons. Pottawatomie County v. Earls (2002) 5 to 4 decision Facts: School drug testing policy of students who engage in any extracurricular activities. This is beyond the policy stated in Vernonia which only did drug testing of athletes. Holding: Mandatory drug testing of students in extracurricular activities is constitutional. Reasoning: While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights are different in public schools than elsewhere; the "reasonableness" inquiry cannot disregard the schools custodial and tutelary responsibility for children. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. Although the safety interest is not as great when we are just taking about student athletes, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for school testing policy.

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Ginsburgs Dissent: The particular drug testing program upheld in this case is no reasonable; it is capricious, even perverse. Petitioners policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. This case is too distinguishable from Vernonia to rely on it (e.g., in that case, there was already a drug problem among student athletes; here, no such problem exists). Ferguson v. City of Charleston (2001) Facts: Pregnant patients were arrested after testing positive for cocaine. They filed suit challenging the policy's validity on the theory that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. Holding: the diagnostic tests constituted an unreasonable search if the patient has not consented to the procedure. Reasoning: The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.

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Schools Search of a Students Possessions and Person


New Jersey v. TLO (1983) The SC held that students possession may be searched in schools if there is reasonable suspicion that they have evidence of illegal activity. Safford Unified School District v. Redding (2009) Facts: A student is strip-searched by school officials on the basis of a tip by another student that Ms. Redding might have ibuprofen on her person in violation of school policy. Student argues that her Fourth Amendment right to be free of unreasonable search and seizure was violated. Holding: In this case, the students Fourth Amendment rights were violated when school officials searched her underwear for non-prescription painkillers. Reasoning: Based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Here, school officials did not have sufficient suspicion to warrant extending the search of Savanna to her underwear.

Exigent Circumstances
In an emergency, the police can search without a warrant if there is probable cause. When the officer has probable cause to believe a crime has occurred, exigent circumstances may include:
Preventing destruction of evidence of a serious crime;

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Case law in this circumstance favors the entering officer when the crime committed is a felony; however, the courts are less likely to allow a warrantless entry when the crime is a misdemeanor. Preventing escape of a fleeing felon; Preventing harm to someone.

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Welsh v. Wisconsin (1984)


Facts: A DUI suspect had wrecked his car, walked home and went to bed. Officers entered without a warrant and arrested him. Police claim that entry was justified as hot pursuit. Holding: Warrantless entry in this case was unreasonable and unconstitutional. Reasoning: An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. The court rejected the claim of hot pursuit because there was no immediate or continuous pursuit of the defendant. Because the suspect had already arrived home, there was little remaining threat to public safety.

Brigham City, Utah v. Stuart


Facts: Police responded to a noise complaint at a party. Upon arrival, the police observed a fight through the screen door of the home. Police entered to stop the fight. Holding: Law enforcement may enter a home without a warrant to render emergency assistance to an injured occupant, or to protect an occupant from an imminent injury.

SEIZURES

AND

ARRESTS

Is a Warrant Needed for Arrests?


Although the Court has expressed a preference for warrants, it also has been clear that a warrant is not required for an arrest so long as there is probable cause. United States v. Watson (1976)
Facts: an informant told a postal inspector that the defendant had stolen credit cards. The inspector told the informant to hold a meeting with the defendant and if the defendant had stolen credit cards with him, the informant was supposed to give a signal to the inspector. The meeting took place in a restaurant and the informant gave the signal and the defendant was arrested. Inspector found no credit cards with the defendant but upon the consent of the defendant, the inspector searched the car and found 2 stolen credit cards and the defendant was convicted. Defendant claims that the warrantless arrest was unlawful and thus the search was unlawful. Holding: Watsons arrest did not violate the Fourth Amendment.

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Reasoning: A peace officer can arrest a person without a warrant for felony or misdemeanor when it takes place in his presence; he can arrest a felon when he has reasonable grounds to believe that the felony took place.

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When is a Person Seized?


When a show of authority has occurred, and a person yields to such authority, a seizure has occurred. United States v. Mendenhall (1980) 5 to 4 decision
Facts: Defendant is stopped at the airport because she fit the "drug currier" profile. Officers asked for her ID and asked her some questions and then asked her to move to their office. They obtained consent to a strip search which revealed that the defendant was carrying heroine. Defendant claims that the search and seizure were unconstitutional. Rule: A person is seized if a reasonable person under the circumstances would believe that he or she was not free to leave. Holding: No seizure occurred prior to defendants consent to the search therefore no Fourth Amendment right has been violated. Reasoning: Examples of circumstances which a reasonable person might feel they are NOT free to leave include: threatening presence of multiple officers, display of weapon, physical touching, or use of language or tone of voice. The court found that under the circumstance a reasonable person would believe that they were free to leave and therefore the seizure was not illegal.

Other use of the Mendenhall definition of seizure.


Florida v. Bostick (1991) The Court considered whether there was a seizure when police boarded a bus and asked passengers permission to search their luggage. The Court here adjusted the test to ask not only whether a reasonable person thought they were free to leave, but whether a person would feel free to decline the officers request or terminate the encounter. United States v. Drayton (2002) Another bus boarding case; the Court reaffirmed the test laid out in Bostick. Brendlin v. California (2007) The court expressly applied Mendenhall and concluded that passengers (not just the driver) are seized when they are riding in a car stopped by police officers. The effect of this ruling is that passengers can invoke the exclusionary rule by arguing that the police acted illegally.

California v. Hodari D. (1991)

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Facts: Officers saw suspicious youths around a car and when the youths saw the officers' car approaching they ran away. The officers gave chase. Defendant did not see the officer behind him until the officer was almost upon him. Defendant threw what appeared to be a rock, and later turned out to be crack cocaine, to the ground. The officer tackled and handcuffed defendant. Defendant argues that he had been "seized" when he saw the officer running towards him, that this seizure was unlawful under the Fourth Amendment. Because the cocaine was discovered as a result of the illegal seizure, it should be excluded. Holding: Although there was a show of authority, since defendant did not comply with that injunction he was not seized until he was tackled. Reasoning: The word "seizure" readily bears the meaning of lying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. It does not remotely apply to a police officer telling a fleeing subject to "stop in the name of the law." That is not a seizure. An arrest requires physical force or, where that is absent, submission to the assertion of authority.

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For What Crimes May a Person be Arrested?


Progression of Precedent
Watson felony arrest can be made without probable cause and no warrant. Atwater misdemeanor arrest can be made when crime is carried out in the presence of the officer. Moore the Fourth Amendment determines when a person may be arrested, not state law.

Atwater v. City of Lago Vista (2001) 5 to 4 decision; dissent is important


Facts: Defendant was driving her truck in Lago Vista. Neither of Atwater's children, who were sitting in the front seat, was wearing seatbelts (a misdemeanor in TX). Lago Vista policeman observed the violations and pulled defendant over. Defendant was handcuffed, placed in jail, and released on bond. Defendant then filed suit alleging that officer's actions had violated her Fourth Amendment right to be free from unreasonable seizure. Holding: The Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, does not limit a police officer's authority to arrest without warrant for minor criminal offenses. Reasoning: "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. OConners Dissent: the Court's decision "neglects the Fourth Amendment's express command in the name of administrative ease" and thus "cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness."

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Facts: Virginia police stopped Moore after receiving a radio call alerting them that he was driving on a suspended license. State law specified the procedure for punishing that infraction: issuance of a citation and summons to appear in court. The officers instead decided to arrest Moore. They searched his person and discovered sixteen grams of crack cocaine. Moore was then charged with possession of cocaine with intent to distribute. Issue: Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest when the arrest violates a provision of state law? No. Holding: The Court held unanimously that the search did not violate Moore's constitutional rights. Reasoning: the existence of probable cause gives an arresting officer the right to perform a reasonable search of the accused to ensure the officer's safety and to safeguard evidence.

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STOP

AND

FRISK

Generally
To approach a person and ask them questions, an officer does NOT need reasonable suspicion. An officer may make an investigatory stop when the officer has reasonable suspicion to believe that the person is involved in criminal activity. If the person is stopped, there can be a frisk but ONLY if there is reasonable suspicion that the person is involved in criminal activity AND there is a belief that he is armed and dangerous. For an arrest there must be probable cause that the person has committed a crime.

The Authority for Police to Stop and Frisk


Terry v. Ohio (1968) development of the Terry Stop
Facts: Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail. Terry argues that the stop and search were a violation of his Fourth Amendment rights. Holding: the search undertaken by the officer was reasonable under the Fourth Amendment; the weapons seized could be introduced into evidence against Terry.

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Reasoning: the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation.

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The Distinction Between Stops and Arrests


Dunaway v. New York (1979) an arrest has occurred if police officers take a suspect to the station house for questioning. Detention intrudes so severely on interests as necessary to trigger traditional safeguards against illegal arrest. Florida v. Royer (1983) taking a suspect from a public area of an airport into a small room constituted an arrest. Hayes v. Florida (1985) the court held that taking a suspect to the police station house for fingerprinting was an arrest and had to be based upon probable cause. United States v. Place (1983) detaining a person's luggage for 90 minutes was a seizure. United States v. Sharpe (1985) detainment of a suspect for 30-40 minutes while waiting for the DEA is ruled a stop, not an arrest.

What May Police Do When They Stop an Individual?


Terry v. Ohio police may frisk an individual if there is reasonable suspicion that he has a weapon. Michigan v. Long (1983) if the police reasonably believe that the person is dangerous, they can conduct a limited investigation of an area from which a person could obtain a weapon (e.g., a glove compartment). Michigan v. Buie (1990) police may conduct a protective sweep if they have reasonable suspicion that a person might be there who poses a threat to them. Such a sweep may only extend to a cursory inspection of those places where a person may be found. Hiibel v. Nevada (2004) 5 to 4 decision
Facts: Defendant was arrested and convicted in Nevada state court for failing to identify himself (as required by state law) to a police officer who was investigating an assault. Hiibel challenged the conviction, claiming it violated his Fourth Amendment right to be free from unreasonable searches. Holding: The search did not violate the Fourth Amendment.

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Reasoning: The search was based on reasonable suspicion (the police officer was investigating the assault, and Hiibel was nearby) and involved only a minimally intrusive question (his name). A state may compel the defendant to disclose his/her identity; this is consistent with investigative purposes of the Terry stop.

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What is Sufficient for Reasonable Suspicion?


RS for Stopping Cars
United States v. Arvizu (2002) Facts: Defendant was stopped by border patrol. A search of his car turned up 100 pounds of marijuana. Officers had observed many facts, which by themselves are not evidence of a crime, but taken together, created reasonable suspicion to stop the car. The factors included: (1) driver slowed down; (2) driver failed to acknowledge officer; (3) children had raised knees; (4) children were waving; (5) the road is used by smugglers; (6) the defendant was using the road during a shift change; and (7) defendant was driving a minivan. Holding: the officer had reasonable suspicion to believe that defendant was engaged in illegal activity, having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer. Reasoning: Although each factor alone could have appeared innocent, when taken together they sufficed for the officer to form a particularized and objective basis for stopping the vehicle. This is less than a hunch, which would only allow an officer to approach someone but not to stop or frisk them.

RS Based on Informant Tips


Alabama v. White (1990) Facts: An anonymous tip told police that White would be leaving his apartment at specific time in specific car and will be driving to a hotel. There has been no self-verifying detail that only an insider would have this information. Detail is sparser and less culpable that Illinois v. Gates. However, after tip has been corroborated, police stop White and find marijuana and cocaine. Holding: If police can corroborate/verify the accuracy of some of the details of an anonymous tip, that tip can provide reasonable suspicion. Reasoning: The Court first stated that an informant's veracity, reliability and basis of knowledge are highly relevant in the reasonable suspicion context. However, the facts of this case involve more than just a tip itself; it involves the cops' independent investigation to confirm the tipster's claims. With respect to reasonable suspicion, not only the quantity of information may be less, but the quality or reliability may be less than necessary to establish probable cause.

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Florida v. JL (2000) Facts: Police received an anonymous tip that a black male wearing a plaid shirt was standing near a bus stop carrying a gun. Officers who responded found a black male wearing a plaid shirt. After frisking him, the officers did find a firearm. He moved to suppress the gun as evidence, arguing that the frisking performed by the officers was illegal under the Fourth Amendment. Holding: The Court concluded that the anonymous tip did not meet the minimum requirements to perform a warrantless search. Reasoning: An anonymous tip must possess a moderate level of reliability, including "predictive information" that offers police a "means to test the informant's knowledge or credibility. An accurate description of a person without a reliable assertion of illegality or description of the crime in question, as was the anonymous tip in this case, does not meet this standard. "All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believe he had inside information.

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RS Based on a Persons Trying to Avoid Police Officer


Unprovoked flight from officers is not enough to gain reasonable suspicion to stop that person. However, unprovoked flight in a high crime area is enough to find reasonable suspicion to perform a Terry stop; reasonable suspicion is also created to do a frisk for weapons. Illinois v. Wardlow (2000) 5 to 4 decision Facts: Defendant inexplicably fled an area of Chicago known for heavy narcotics trafficking after noticing police officers in the area. When officers caught up with him they conducted a protective pat-down search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. The officers arrested Wardlow after discovering that he was carrying handgun. The Illinois Appellate Court found that the officer did not have reasonable suspicion to make the stop. Holding: In this case, a person's sudden and unprovoked flight from identifiable police officers, patrolling a high crime area, is sufficiently suspicious to justify the officers' stop of that person. Reasoning: The officer was justified in suspecting that the accused was involved in criminal activity and, therefore, in investigating further. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion" to justify a stop. "Flight is the consummate act of evasion." Stevens Dissent: The dissenters concurred with the majoritys decision not to create a per se rule about flight and its effect on reasonable suspicion. The dissenters did not agree that in the totality of the circumstances, in this case, the officer had sufficiently obtained reasonable suspicion to stop the defendant.

RS Based on Profiles

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United States v. Sokolow (1989) Facts: DEA agents stopped Sokolow in Honolulu International Airport after his behavior indicated he may be a drug trafficker: he paid $2,100 in cash for airline tickets, he was not traveling under his own name, his original destination was Miami, he appeared nervous during the trip, and he checked none of his luggage. Agents arrested Sokolow and searched his luggage without a warrant. Later, at the DEA office, agents obtained warrants allowing more extensive searches and they discovered 1,063 grams of cocaine. Holding: The search did not violate defendants rights under the Fourth Amendment. Reasoning: the agents had a "reasonable suspicion that respondent was engaged in wrongdoing." The validity of such a stop should be based on the "totality of the circumstances," which, in this case, gave agents a clear reason to suspect Sokolow of drug trafficking.

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The Exclusionary Rule


IS THE EXCLUSIONARY RULE BEHAVIOR?
A

DESIRABLE REMEDY

FOR

UNCONSTITUTIONAL POLICE

Costs/Benefits of the Exclusionary Rule


Benefits: deterrence of police misconduct; judicial integrity. Costs: guilt go free; juries not being able to see all the evidence.

Hudson v. Michigan (2006) 5 to 4 decision


Facts: Hudson was convicted of drug and firearm possession in state court after police found cocaine and a gun in his home. The police had a search warrant, but failed to follow the Fourth Amendment "knock and announce" rule which requires police officers to wait 20-30 seconds after knocking and announcing their presence before they enter the home. The trial judge ruled that the evidence found in the home could therefore not be used. Holding: the general rule excluding evidence obtained in violation of the Fourth Amendment does not apply to the "knock-and-announce" rule.

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Administration of Criminal Justice Harges Spring 2010 Reasoning: Scalias opinion look like arguments against the exclusionary rule all together. The interests violated by the abrupt entry of the police "have nothing to do with the seizure of the evidence." The knock-andannounce rule was meant to prevent violence, property-damage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible "deterrence benefits," and that alternative measures such as civil suits and internal police discipline could adequately deter violations. Breyers Dissent: the Court has a long history of upholding the exclusionary rule; the majority's cited precedents do not support its conclusion. The dissent also expressed doubt that knock-and-announce violations could be deterred without excluding the evidence obtained from the searches.

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THE ORIGINS

OF THE

EXCLUSIONARY RULE

Weeks v. United States (1914)


Facts: Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. Holding: the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. Reasoning: To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule."

Mapp v. Ohio (1961) overruled Wolf decision which stated that the exclusionary rule did not apply to the states.
Facts: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Holding: "All evidence obtained by searches and seizures in violation of the Constitution is, by the Fourth Amendment, inadmissible in a state court." Reasoning: Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.

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Administration of Criminal Justice Harges Spring 2010 Harlans Dissent: I do not believe that this Court is empowered to impose this much-debated procedure on local courts, however efficacious we may consider the Weeks rule to be as a means of securing Constitutional rights.

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WHO CAN OBJECT

TO THE INTRO OF

EVIDENCE

AND

RAISE

THE

EXCLUSIONARY RULE?

Rakas v. Illinois (1978) 5 to 4 decision


Facts: Officers stopped a car suspected of being the get-away vehicle of a robbery. Three occupants were removed from car and the police searched it. In the glove box, the officer found rifle shells; under the front seat they found a sawed-off rifle. The evidence was used against the passengers at trial; they argued that the search and seizure was unlawful and that the evidence should be excluded. Holding: The search and seizure did not violate the Fourth Amendment because the petitioners did not have any possessory interest in the automobile or items seized; they lacked standing to challenge the admissibility. Reasoning: They asserted neither a property nor a possessory interest in the automobile nor an interest in the property seized. And as we have previously indicated, the fact that they were legitimately on [the] premises in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. Whites Dissent: The court declared an open season on automobiles because unlawful stopping and searching a car may be, absent a possessory or ownership interest, no mere passenger may object, regardless of his relationship to the owner. The dissenters also used a notion set-forth in Katz by stating that what a person seeks to preserve as private, even in an area accessible to the public, may be constitutional protected, such as a person riding in an automobile next to his friend the owner. Petitioners were in a private place with the permission of the owner, but the Court states that that is not sufficient to establish entitlement to a legitimate expectation of privacy.

Minnesota v. Carter (1998)


Holding: In accordance with the Fourth Amendment, household visitors do not have the same protection against unreasonable searches and seizures as do residents or overnight social guests.

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Administration of Criminal Justice Harges Spring 2010 Reasoning: People who visit someone's home for a short time do not have the same protection against unreasonable police searches and seizures as do the residents or their overnight guests. Short-term visits for commercial transactions are not protected by the Fourth Amendment. Furthermore, Chief Justice Rehnquist noted that nothing in the case served to show that Carter was accepted into the household. Ginsburgs Dissent: The logic of the decision in Olson below extends to shorter-term guests as well. One need not stay overnight to anticipate privacy in anothers home.

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Minnesota v. Olson (1990) part of the opinion of Carter case; Court states that an overnight house guests gains a reasonable expectation of privacy in the home. Brendlin v. California (2007)
Facts: Police stopped Karen Simeroth's car for having expired registration tabs. Bruce Brendlin, who had a warrant out for his arrest, was riding in the passenger seat. Police found methamphetamine, marijuana, and drug paraphernalia in the car and on Simeroth's person. In a California trial court, Brendlin filed a motion to suppress the evidence obtained at the traffic stop, claiming that the stop was an unreasonable seizure in violation of the Fourth Amendment. Holding: A passenger is seized during a traffic stop and thus has standing to challenge the stop/seizure of the vehicle (however, a passenger does not have standing to challenge the search of the vehicle).

EXCEPTIONS

TO THE

EXCLUSIONARY RULE

Independent Source
Evidence obtained in violation of the 4th amendment is still admissible if it is also obtained through a source independent of the police misconduct and untainted by the illegal actions of the police. Murray v. United States (1988) 4 to 3 decision
Facts: Police illegally entered a warehouse and viewed burlap sacks; police left and obtained a warrant; they then returned with the warrant to search the warehouse. During this legal search, other evidence was obtained. Holding: The court found that the source was sufficiently "independent" because police already had sufficient probable cause to get a warrant for the first search regardless of what they viewed during that search.

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Marshalls Dissent: This decision will encourage law enforcement officers to engage in illegal searches. The incentives for such illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainty and many confirmatory searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant.

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Inevitable Discovery
If the police can demonstrate that they inevitable would have discovered the evidence, even without a violation of the 4th amendment, the exclusionary rule does not apply and the evidence is admissible. Nix v. Williams (1984)
Facts: Williams was arrested for the murder of a ten-year-old girl who's body he disposed of along a gravel road. State law enforcement officials engaged in a massive search for the child's body. During the search, after responding to an officer's appeal for assistance, Williams made statements to the police (without an attorney present) which helped lead the searchers to the child's body. The defendant's Miranda rights were only read to him after his arrest. Holding: The Court relied on the "inevitable discovery doctrine," as it held that the exclusionary rule did not apply to the child's body as evidence since it was clear that the volunteer search teams would have discovered the body even absent Williams' statements. Brennans Dissent: The doctrine should require that the government satisfy a heightened burden of proof before it is allowed to use such evidence (clear and convincing evidence). Increasing the burden of proof serves to impress the fact-finder with the importance of the decision and thereby reduces the risk that illegally obtained evidence will be admitted.

Inadequate Causal Connection (Attenuation of the Taint)


If the link between the illegal police act and the evidence is attenuated, then the evidence is admissible. Brown v. Illinois (1975)
Facts: Defendant, who had been arrested without probable cause and without a warrant, and under circumstances indicating that the arrest was investigatory, made two in-custody inculpatory statements after he had been given the warnings prescribed by Miranda. Petitioner filed a pretrial motion to suppress the statements. The motion was overruled and the statements were used in the trial, which resulted in petitioner's conviction. The State Supreme Court, held that the statements were admissible on the ground that the giving of the Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements, and petitioner's act in making the statements was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." (Wong Sun test)

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Holding: The Miranda warnings alone are not enough to purge the taint of an illegal arrest. A confession must be voluntarily given AND sufficiently an act of "free will" to purge the primary taint; the confession must also be sufficiently independent of the primary taint. Reasoning: The question whether a confession is voluntary under Wong Sun must be answered on the facts of each case. Though Miranda warnings are an important factor in resolving the issue, other factors must be considered; and the burden of showing admissibility of in-custody statements of persons who have been illegally arrested rests on the prosecutor.

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The Good Faith Exception to the Exclusionary Rule


The exclusionary rule does not apply if police reasonably relied on a subsequently invalid warrant used to conduct a search or seizure. United States v. Leon (1984) 6 to 3 decision; hotly debated case among judges
Facts: Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affidavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. Holding: A good faith exception does apply to the exclusionary rule. The evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. Reasoning: The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge. Brennans Dissent: The courts use of costs and benefits analysis has a narcotic effect of creating the illusion of technical precision and ineluctability. The majority has not given honest assessment to the merits of the exclusionary rule. If this good faith exception weakens police compliance with the 4th Amendment, then this exception will be reconsidered in the future.

Herring v. United States (2009) this case is not a strict good faith exception case as there are some distinguishing factors from Leon 5 to 4 decision

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Facts: Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty arrest warrant. The warrant was supposed to have been recalled five months prior, however someone had accidentally failed to remove it from the computer system. Herring filed a motion to suppress the allegedly "illegally obtained" evidence, however the lower court allowed the evidence stating that illegally obtained evidence should only be suppressed when doing so could result in appreciable deterrence of future police misconduct. Holding: A court does not violate the Fourth Amendment rights of a criminal defendant by introducing evidence obtained through a police search based on an arrest warrant that should have been recalled, but was negligently allowed to remain active, at the time of the search. Reasoning: The police mistakes that lead to the unlawful searches was merely the result of isolated negligence and "not systematic error or reckless disregard of constitutional requirements." Evidence obtained under these circumstances is admissible and not subject to the exclusionary rule. Ginsburgs Dissent: An intact exclusionary rule provides a strong incentive for police compliance with respect to the Fourth Amendment and its erosion in this case was not warranted. The Court should move away from its reliance on analyzing the degree of police culpability when determining whether the exclusionary rule applies, but rather draw a bright line between errors made by record keepers and those made by police officers.

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The Exception for Violations of the Requirements for Knock and Announce
Hudson v. Michigan (2006) 5 to 4 decision
Holding: The court held that the exclusionary rule does not apply if police violate the "knock and announce" requirement of the 4th amendment. Reasoning: Majority was concerned that allowing exclusion would cause a flood of litigation in order to protect a relatively "minute" protection of the fourth amendment. Dissent: Holds that the result of the case is a significant departure from precedent and severely weakens the practical value of the knock and announce protection.

Police Interrogation and the Privilege Against SelfIncrimination

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DUE PROCESS

AND THE

REQUIREMENT

FOR

VOLUNTARINESS

The Requirement for Voluntariness


Hopt v. Utah (1884) a confession should not go to the jury unless it appears to the court to have been voluntary." (based on English common law and not on the constitution) Bram v. United States (1897) the Supreme Court first found that involuntary confessions violate the privilege against self-incrimination under the Fifth Amendment. Brown v. Mississippi (1936)
Facts: A man suspected of murder was beaten and hung until he confessed to the crime; he was subsequently convicted of the crime despite the fact that the officers admitted to the beatings. Holding: A defendant's confession that is extracted by police violence cannot be entered as evidence and violates the due process clause of the Fourteenth Amendment. Reasoning: The Fifth Amendment guarantees the defendant's protection from self incrimination, such as through torture as applied in this case. The Fourteenth Amendment's Due Process clause was used to apply this provision of the Fifth Amendment to the states. This was one case in a series of cases in which parts of the Bill of Rights have been deemed "fundamental" enough to apply to the states as well as in federal cases.

Determining Whether a Confession is Voluntary


Length of Interrogation; Deprivation of Bodily Functions
Ashcraft v. Tennessee (1944) a confession is deemed involuntary when a suspect was not permitted to sleep for 36 hours during which the interrogation occurred. Payne v. Arkansas (1958) the fact that the suspect was deprived of food for 24 hours was important to the court's conclusion that the confession was involuntary.

The Use of Force and Threats of Force


Arizona v. Fulminante (1991) 5 to 4 decision

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Facts: Defendant reported his step-daughter missing but his story was inconsistent and he became a suspect. He moved to NJ and was arrested; his cell mate was a former police officer who was a confidential informant. His cellmate told him that other inmates were upset with him after they heard rumors that he killed the little girl and suggested that if he confessed he would be protected. The court admitted his confessions as evidence, convicted him, and sentenced him to death. On appeal, the Arizona Supreme Court ordered Fulminante to be retried without the use of the confessions. Issue: Did the Arizona Supreme Court properly apply the totality of circumstances test when considering whether a suspect's confession to murder was coerced?; and did the Arizona Supreme Court properly apply harmless error analysis when considering whether the suspect's coerced confession influenced the outcome of the trial? Holding: Yes and yes. The Court found that "it was fear of physical violence, absent protection from his friend Sarivola, which motivated Fulminante to confess."; this motivation invalidated his confession. Because the confessions were critical to the outcome of the trial, the fact that they were obtained coercively could not be dismissed as a harmless error. Rehnquists Dissent: There was no evidence that defendant believed his life was in danger or that he confessed to obtain the protection offered. The conversations between the two men were not lengthy and defendant was free to leave at all times. The justice also dissented to using harmless error analysis for coerced confessions on the ground that confessions always significantly affect a trial's outcome.

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Psychological Pressure Tactics


Spano v. New York (1959) Facts: Defendant and another man were in a bar fight. Defendant lost fight; but went to his house and got a gun and then he shot and killed the other man. Defendant, with the help of an attorney, turned himself in and the attorney instructed the defendant not to say anything to the police officers. The officers interrogated the defendant for about 8-10 hours and they even used defendant's friend to get a conviction out of him. Finally the defendant gave in and confessed; the confession was used by trial court and defendant was sentenced to death. Holding: The SC held that the confession was not voluntary. Reasoning: The court stated that the police had a witness to the crime and they had the defendant charged with 1st degree, so the only intent the officers had was to get a confession out of the defendant. The court further observed that the defendant was put through long hours of interrogation and his friend was used by the officers to get the confession out of him. So the court ruled that the defendant "was overborne by official pressure, fatigue and sympathy falsely aroused" which makes his confession involuntary.

Deception

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Lynumn v. Illinois (1963) a confession was involuntary when the suspect was threatened with taking her kids away if she did not cooperate with police. Leyra v. Dennis (1954) the Court found that a confession was voluntary even where police lied to the suspect and told him that his accomplice had already confessed. Frazier v. Cupp (1969) the Court found that an officer acting as a friend to a suspect and expressing sympathy for his or her plight is not deception requiring suppression of a confession.

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Age, Education, and Mental Condition of a Suspect


Payne v. Arkansas in finding a confession was involuntary, the court stressed that the suspect has only a fifth-grade education. Culombe v. Connecticut (1961) the Court emphasized that the suspect was of illiterate and of low intelligence. Crooker v. California (1958) the Court found the confession was voluntary and noted that the suspect had completed a year of law school. Colorado v. Connelly (1986) Facts: Francis Connelly approached a police officer and, without any prompting, confessed to murder. The police officer immediately informed Connelly that he had the right to remain silent, but Connelly indicated that he still wished to discuss the murder. It was later discovered that Connelly was suffering from chronic schizophrenia at the time of the confession. A Colorado trial court suppressed the statements on the ground that they were made involuntarily. Holding: The taking of Connelly's statements as evidence did not violate the Due Process Clause of the Fourteenth Amendment. Reasoning: the taking of Connelly's statements as evidence did not involve any element of governmental coercion, no violation of the Due Process Clause occurred. The Court argued that suppressing statements in cases where suspects were not coerced would have no deterrent effect on future violations of the Constitution by the police. While a defendant's mental condition may be a "significant" factor in the "voluntariness" calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness". Note: After Connelly, the totality of circumstances test is not even triggered unless the defendant can show coercive police conduct. Questions of free will and rational decision making are irrelevant to a due process claim unless police misconduct existed and a causal connection can be shown between the misconduct and the confession.

Is the Voluntariness Test Desirable?

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Administration of Criminal Justice Harges Spring 2010 Advantages: focuses on the totality of the circumstances; also a concern for the reliability of the confession. A confession gained through violent, coercion, or deprivation is unreliable. Disadvantages: relatively little guidance to police officers as to what they can and cannot do; inconsistency in the courts decisions.

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FIFTH AMENDMENT LIMITS

ON IN-CUSTODIAL INTERROGATION

Miranda Decision and its Affirmation by the Supreme Court


History: Chief Justice Warren assigned his clerks the task of clarifying the Escobedo case which studied the 6th amendment. Warren's first draft of Miranda was a 6th amendment decision. The problem was that Miranda had a lawyer at trial so Brennan urged Warren to redraft the decision. Warren did not like the police's overt reliance on trickery to obtain confessions. Timeline: Earl Warren appointed CJ of the SC in 1953; Weeks v. US case (1961) - applied the exclusionary rule to the states; Escobedo v. Illinois case (1964) - 6th amendment; Massiah v. US case (1964) - 6th amendment Fifth Amendment: "No personshall be compelled in any criminal case to be a witness against himself." Not limited to in-court proceedings.
Why is knowledge of your right to remain silent important? In our adversarial system, it is the fundamental right for a defendant to say nothing and suspects should be advised of this right to protect a fundamental trial right.

Waiver: Any constitutional right can be waived; burden of proof is on the state and the standard is a preponderance of the evidence; you may waive at any time even when you have already answered questions. Invocation of Rights: When you invoke your right to silence, the questioning might continue; when you invoke your right to counsel, the questioning must stop. Miranda v. Arizona (1966)
Procedural History: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." In Miranda v. United States, petitioner convicted of rape after confessing without being advised of his rights.

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In Vignera v. New York, the petitioner was questioned by police, made oral admissions, and signed an inculpatory statement all without being notified of his right to counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI, interrogated, and made to sign statements without being notified of his right to counsel. Lastly, in California v. Stewart, local police held and interrogated the defendant for five days without notification of his right to counsel. In all these cases, suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation. The court began this study of confessions after Escobedo, where a petitioner was questioned without the presence of his lawyer even though he consistently asked for his lawyer who was actually at the station but denied access to his client. Holding: The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show: (1) that the defendant was informed of the right to consult with an attorney before and during questioning; (2) That the defendant was informed of the right against selfincrimination prior to questioning by police; and (3) That the defendant not only understood these rights, but voluntarily waived them. Reasoning: Prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination. The modern practice of in-custody interrogation is psychologically, rather than physically, oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." Dissents: Court is going to far; the due process clauses are enough. Waiver is too big of a burden for the state to prove.

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Dickerson v. United States (2000)


Facts: Dickerson filed a motion to suppress the statement that he made on the ground that he had not received Miranda warnings before being interrogated. The government argued that even if the Miranda warnings were not read, the statement was voluntary and therefore admissible under 18 USC Section 3501, which provides that "a confession shall be admissible in evidence if it is voluntarily given." (this statute was created by congress to overrule the Miranda decision) Holding: The Court held that Miranda governs the admissibility of statements made during custodial interrogation in both state and federal courts.

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Reasoning: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," wrote Rehnquist. "Miranda announced a constitutional rule that Congress may not supersede legislatively. We decline to overrule Miranda ourselves," concluded the Chief Justice. Dissents: Scalia & Thomas blasted the Court's ruling, writing that the majority opinion gave needless protection to "foolish (but not compelled) confessions."

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Is Miranda Desirable?
There are three main criticisms of Miranda:
Ineffective: Study found that regardless of whether people are read their warnings, they are still likely to proceed to answer questions. The lack of effect may be that police still has the ability to undermine the warnings; or perhaps in-custodial interrogations are too inherently coercive that no warnings can lessen that. Too effective: Miranda prevents police from gaining confessions and allows guilty people to go free. Study shows that Miranda has increased the rate of lost confessions involving serious crimes. Constitutional Interpretation and the Role of the Judiciary: Critic and the dissenters argue that neither the text nor the history of the Fifth Amendment support the requirement of warnings or of counsel during interrogations.

Miranda has its defenders too:


Effective: Some challenge the study mentioned above criticizing the methodology and concluding that Mirandas net damage to law enforcement is zero. Clear Guidance: Miranda provides clear guidelines; administer the warnings and follow procedures and the confession will be presumed admissible.

What are the Requirements for Miranda to Apply?


When is a Person In-Custody?
Orozco v. Texas (1969) a person who is arrested is in custody and Miranda warnings must be given, even if the questioning occurs in the persons home. Oregon v. Mathiason (1977) a person who is free to leave is not in custody and no Miranda warnings are required. Facts: An Oregon state police officer suspected Carl Mathiason of burglary and asked him to come to the police station for questioning. Mathiason came freely, spoke with the officer, and was not arrested at the time. He was arrested later and a trial court used evidence obtained during the questioning to convict him. Mathiason moved to suppress the evidence since he was not read his Miranda rights before the questioning.

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Holding: Incriminating evidence may be obtained from a suspect during a voluntary interview and be used at trial even if the police did not read Miranda rights to the suspect. Reasoning: Miranda only required law enforcement officials to recite a suspect's rights when suspect had been "deprived of his freedom of action in any significant way." The Court determined that in this case there was "no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way." Even if the police coercively pressured Mathiason during the interview, he came to the police station freely and was free to leave at any time. Therefore Miranda rights did not apply. Beckwith v. United States (1976) the Court held that an IRS agent conducting an investigation for tax violations is not required to give Miranda warnings because the taxpayer is not in custody. Minnesota v. Murphy (1984) the Court held that statements made in a meeting with a persons probation officer were not uttered in a custodial contact and no Miranda warnings were required. Stansbury v. California (1994) the Court held that an officers subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody. Nor is it measure by the subjective views of the person being questioned. Yarborough v. Alvarado (2004) 5 to 4 decision Facts: Police interviewed Alvarado, 17, without his parents at a police station about his involvement in a crime; police neither arrested nor Mirandized Alvarado. During the interview, Alvarado confessed involvement. Defendant was convicted with confession. The Ninth Circuit Court of Appeals reversed. Recognizing the "in custody" standard to be whether a reasonable person would feel free to end interrogation, the appeals court held that a juvenile is more likely to feel he is in custody. Because Alvarado was "in custody," the Fifth Amendment required that his rights under Miranda v. Arizona (1966) be read to him. Holding: When deciding whether a suspect is "in custody", and therefore entitled to his Miranda warnings, an officer does not have to consider the suspect's age and previous history with law enforcement. Reasoning: Determining whether a suspect is actually in custody has always been based on objective criterion like whether he had been brought to the police station by police or had come of his own accord. Requiring officers to consider individual characteristics of a suspect when determining whether he is "in custody," such as the suspect's age or previous history with law enforcement, would make the test a subjective one that would be more difficult for officers to understand and abide by. Dissent: The defendants youth is an objective circumstance that was known to the police. It is not a special quality, but rather a widely shared characteristic that generates commonsense conclusions about behavior and perception.

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Berkemer v. McCarty (1984) The Court holds that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda regardless of the nature or severity of the offense. However, routine questioning of motorists detained pursuant to traffic stops is not custodial interrogation under Miranda.

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What is an Interrogation?
Rhode Island v. Innis (1980) Facts: Innis was arrested by police in Providence, Rhode Island. Innis was unarmed when arrested. Innis was advised of his Miranda rights and subsequently requested to speak with a lawyer. While escorting Innis to the station in a police car, three officers began discussing the shotgun involved in the robbery. One of the officers commented that there was a school for handicapped children in the area and that if one of the students found the weapon he might injure himself. Innis then interrupted and told the officers to turn the car around so he could show them where the gun was located. Holding: The police "interrogation" en route to the station did not violate Innis's Miranda rights. Reasoning: The Court held that the Miranda safeguards came into play "whenever a person in custody is subjected to either express questioning or its functional equivalent," noting that the term "interrogation" under Miranda included "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." The Court then found that the officers' conversation did not qualify as words or actions that they should have known were reasonably likely to elicit such a response from Innis. Arizona v. Mauro (1987) The Court held that no interrogation took place when the suspect was allowed to speak to his wife in the presence of a police officer. Illinois v. Perkins (1990) Facts: While being held in jail, Perkins freely confessed to committing a murder to an undercover police officer who was posing as another inmate. Holding: The undercover police officer did NOT violate the accused's Miranda rights as protected by the Fifth and Fourteenth Amendments. Reasoning: Conversations between suspects and undercover officers are not afforded Miranda protection since they are not done in a "policedominated atmosphere" where compulsion to confess is present. "It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation." There was no danger of coercion in this case.

What is Required of the Police?

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California v. Prysock (1981) Procedural History: The Court of Appeals held that the Miranda rights were given out of order and were thus not adequate. Holding: The Supreme Court reversed stating that the court has never indicated that the "rigidity" of Miranda extends to the precise formulation of the warnings given a criminal defendant. Reasoning: Nothing in the warnings given respondent suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general. Duckworth v. Eagan (1989) 5 to 4 decision Facts: When first questioned by police about the stabbing of a woman, suspect Gary Eagan did not make incriminating statements after signing a waiver and being told he would be provided a lawyer "if and when you go to court." The following day, after Eagan was questioned again and signed a different waiver, he confessed to the stabbing and revealed physical evidence of the crime. Eagan later claimed that the language of the first waiver made his confession inadmissible. Holding: Informing Eagan that an attorney would be appointed for him "if and when you go to court" did not render the Miranda warnings inadequate. Reasoning: The Court reasoned that officers did not have to use the specific language of the Miranda decision so long as they reasonably conveyed to suspects their constitutional rights. Chief Justice Rehnquist argued that the instructions given to Eagan accurately described the procedure for the appointment of counsel in Indiana.

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What are the Consequences of a Miranda Violation?


What is the admissibility of evidence gained as the fruits of a Miranda violation? Michigan v. Tucker (1974) The Court held that the identity of witness obtained from a suspect that was not given Miranda warnings did not mean that the witness could not be used at trial. Oregon v. Elstad (1985)
Facts: Elstad was suspected of committing a burglary and was picked up by police officers in his home. Before officers had given the warnings required by Miranda, Elstad made an incriminating statement. Once at the Sheriff's headquarters, Elstad was advised of his rights. Elstad then voluntarily executed a written confession. Holding: Elstad's written confession was not made invalid by the failure of the officers to administer Miranda warnings at his home.

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Reasoning: While Miranda required that unwarned admissions must be suppressed, subsequent statements, if made knowingly and voluntarily, need not be. "The mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion." The Court also noted that police officers were ill-equipped to determine when "custody" legally begins.

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Missouri v. Seibert (2004) 5 to 4 plurality decision


Facts: Seibert was interrogated by a police officer. The officer initially withheld Miranda warnings, hoping to get a confession from her first. Once she had confessed, the officer took a short break from questioning, then read her the Miranda rights and resumed questioning her after she waived those rights. He prompted her to restate the confession that she had made earlier. Based on this second, Mirandized confession, Seibert was convicted. Holding: The rule from Oregon v. Elstad that a defendant who has made an unMirandized confession may later waive her Miranda rights to make a second confession (admissible in court) does NOT apply when the initial confession is the result of an intentional decision by a police officer to withhold her Miranda warnings. Four-Justice Plurality: The post-Miranda confession is only admissible - even if the two-stage interview was unintentional, as it was in Elstad - if the Miranda warning and accompanying break are sufficient to give the suspect the reasonable belief that she has the right not to speak with the police. Breyer Opinion: The subsequent statement should be admissible if the officers acted in good faith. Kennedy Opinion: Evaluating the warning and accompanying break was only necessary if the police used the two-stage interrogation in bad faith. Kennedy focused on the "curative" measures taken between the first unwarned confession and the subsequent Mirandized confession. "The admissibility of post-warning statements should continue to be governed by Elstad's principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made." OConner Dissent: The subsequent confession should be admissible as long as Miranda was given and the statement was voluntary.

United States v. Patane (2004) 5 to 4 plurality decision


Facts: Patane was arrested at his home for calling his ex-girlfriend in violation of a restraining order. During the arrest, police offers began reading Patane his Miranda rights. Patane told the officers that he knew his rights. The officers then stopped reading them, at which point Patane told police that he had a gun in his house; which they found. Patane argued that his rights under the Fifth Amendment right not to incriminate ones self were violated because there was not probable cause to arrest him and because the gun had been found as a result of an un-Mirandized confession. The government argued that physical evidence found as the result of un-Mirandized testimony could be used in court, despite the fact that the testimony itself was inadmissible.

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Holding: Three justices wrote that the Miranda warnings were merely intended to prevent violations of the Constitution, and that because Patane's unMirandized testimony was not admitted at trial the Constitution (specifically the Fifth Amendment's protection against self-incrimination) had not been violated. Physical evidence obtained from un-Mirandized statements, as long as those statements were not forced by police, were constitutionally admissible. Kennedy/OConner Concurrence: Held that the physical evidence was constitutionally admissible, but did so with the understanding that the Miranda warnings must be accommodated to other objectives of the criminal justice system. They did not discuss whether the Miranda warnings were, in themselves, constitutionally required. Physical evidence derived from an statement obtained in violation of Miranda is admissible in the prosecutions case in chief. Miranda only protects privilege against self incrimination at trial. Souter Dissent: Fruit of the poisonous tree should apply so physical evidence obtained from an involuntary, unwarned statement should be excluded. Breyers Dissent: Limited the previous dissent by saying that it should be excluded unless the failure to give Miranda warnings was in good faith.

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What are the Exceptions to Miranda?


Impeachment
Harris v. New York (1971) 5 to 4 decision Facts: Harris was arrested for making two sales of heroin to an undercover police officer. Before receiving the Miranda warnings, Harris said that he had made both sales at the request of the officer. This statement was not admitted into evidence at the trial. However, Harris later testified in Court that he did not make the first sale and in the second sale he merely sold the officer baking powder. Harris' initial statement was then used by the prosecution in an attempt to impeach his credibility. Holding: The use of Harris' post-arrest statement did not violate his Fifth, Sixth, and Fourteenth Amendment rights guaranteed by the Miranda decision. Reasoning: The Miranda decision did not mandate that evidence inadmissible against an accused in the prosecution's case must be barred for all purposes from the trial. The Court reasoned that the shield provided by Miranda could not be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." The Court found that the speculative possibility that police misconduct could be encouraged was outweighed by the value of admitting the statement into the impeachment process. Brennan Dissent: Focuses especially on the concern that allowing impermissibly obtained statements to be used for impeachment will give police an incentive to ignore Miranda, knowing that the statements they obtain still can be used for impeachment.

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New York v. Quarles (1984) 5 to 4 decision Facts: After receiving the description of Quarles, an alleged assailant, a police officer entered a supermarket, spotted him, and ordered him to stop. Quarles stopped and was frisked by the officer. Upon detecting an empty shoulder holster, the officer asked Quarles where his gun was. Quarles responded. The officer then formally arrested Quarles and read him his Miranda rights. Holding: The Court should not suppress Quarles's statement about the gun and the gun itself because the officer had failed at the time to read Quarles his Miranda rights. Reasoning: There is a "public safety" exception to the requirement that officers issue Miranda warnings to suspects. Since the police officer's request for the location of the gun was prompted by an immediate interest in assuring that it did not injure an innocent bystander or fall into the hands of a potential accomplice to Quarles, his failure to read the Miranda warning did not violate the Constitution. OConners Concurrence: Admission of the gun is proper as there is nothing in Miranda that requires exclusion of non-testimonial evidence derived from informal custodial interrogation. However, the public safety exception blurs the edges of the clear line established by Miranda. When the police ask custodial questions without administering the required warnings, Miranda requires that the answers be presumed compelled and they should be excluded from the evidence. Marshalls Dissent: The police could have found the gun safely without violating D's Miranda rights. The police could have cordoned off the store and searched the area. There was no need to violate D's Miranda rights in this case.

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Booking Exception
Police can ask a person questions when taking a person into custody that are needed in the booking process, such as name, address, date of birth, height, and weight. The Court has said that the answers to these questions are admissible, even without administration of Miranda warnings. Pennsylvania v. Muniz (1990) Facts: Muniz is parked on shoulder of the road. Police stop to offer assistance, and they note symptoms of alcohol consumption. Muniz fails field sobriety tests. He is taken to a booking center and asked basic questions. He is also asked the date of his 6th birthday. He is then Mirandized and admits to driving under the influence. Holding: The Court held that the delivery (slurring) does not have a testimonial aspect. It is much like physical evidence (Schmerber v. CA)

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Reasoning: Testimonial evidence is only evidence that calls on defendant to give up the contents of their thoughts/ beliefs. Questions requested for record-keeping purposes are reasonably related to administrative concerns; they fall outside the protections of Miranda because they fall under the routine booking exception. It is interrogation, but is permissible. The question about his 6th B-day, however, is testimonial and is excluded by Miranda. Instructions for field sobriety dont call for response, so Munizs responses are not in response to interrogation, so they are also admissible.

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Waiver
What is Sufficient to Constitute Waiver? North Carolina v. Butler (1979) Facts: NC Supreme Court argues that no statement of a person under interrogation may be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer. Holding: The SC held that, although the courts must presume that a defendant did NOT waive his rights, in at least some cases waiver can clearly be inferred/implied from the actions and words of the person interrogated. Dissent: "The court shrouds in half-light the question of waiver, allowing courts to construct inferences from ambiguous words and gestures." Ambiguity should be interpreted against the interrogator considering the "compulsion inherent in custodial interrogation." Under such conditions, only the most explicit waivers can be considered knowingly and freely given. Fare v. Michael C. (1979) the Court said that the totality of the circumstances approach is adequate to determine whether there has been a waiver even when interrogation of juveniles is involved. This include consideration of age, background, experience, etc. into the capacity to under the warnings given and consequences of waiving those rights. Moran v. Burbine (1986) Defendant has waived his right to counsel but unbeknownst to him, his sister had retained counsel for him who had told the police that no interrogation should be done. The suspect confessed and at no time was told that he had a lawyer appointed. The Court held that events occurring outside of the presence of the suspectand unknown to him can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.

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Spring v. Colorado (1987) the Court ruled that the police had no duty to inform a suspect of the nature of the crime for which he is under suspicion. The court explained that the additional information could affect only the wisdom of a Miranda waiver, not its essential voluntary and knowing nature. How is Waiver After the Assertion of Rights Treated? Michigan v. Mosley (1975) Facts: The defendant moved to suppress his incriminating statement, asserting that under the Miranda decision, it was impermissible for the second officer to question him about the murder after he had refused to answer the first officer's questions about the robberies. Holding: Once a defendant exercises his right to remain silent, he may later be interrogated on another subject as long as reasonable time has passed and a new warning given. Reasoning: The Court held that (1) the Miranda requirement that police interrogation must cease when the person in custody indicated that he wished to remain silent, neither created a per se proscription of indefinite duration upon any further questioning by any police officer at any time or place on any subject, nor imposed a blanket prohibition against the taking or the admission in evidence of voluntary statements, nor permitted a resumption of interrogation after a momentary cessation; (2) the admissibility of incriminating statements obtained after a person in custody had initially decided to remain silent depended on whether his right to cut off questioning was scrupulously honored; and (3) the defendant's incriminating statement in the case at bar was admissible in evidence, since (a) the defendant had been properly advised of his Miranda rights at both interrogations; (b) when the defendant exercised his right to remain silent at the first interrogation, the officer immediately ceased the questioning; and (c) the second interrogation occurred after a significant time lapse, was directed solely to the holdup murder, which was not related to the robberies, and was conducted at another location in the building by another officer. There was no evidence that the police used interrogations as a pattern of coercion to deprive D of his right against compulsory self-incrimination. Edwards v. Arizona (1981) Facts: Edwards; the petitioner was charged with robbery. A warrant was issued and Edwards was arrested. After Edwards was read his Miranda warnings, he immediately requested for a lawyer. The next morning, two detectives went to question Edwards without the presence of his attorney and they obtained a confession out of the petitioner. Holding: The confession is inadmissible as it is a violation of the defendants Fifth Amendment rights to be questioned after he has invoked his right to counsel.

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Reasoning: According to Miranda v. Arizona, all police interrogation should stop when a person requests for an attorney. If an officer starts a conversation with the defendant which according to a reasonable officer is likely to result in the defendant making incriminating statements, then that conversation will be considered police interrogation. Unless the defendant voluntarily initiates the conversation, all other questioning will be seized after a defendant asks for the assistance of a counsel. Minnick v. Mississippi (1990) Holding: Once suspect in custody invokes his Miranda right to counsel, the police must not only permit the suspect to consult with an attorney but they may not re-initiate questioning unless counsel is present. Therefore, under this strict rule, once a person in custody requests counsel, it is as if a protective shield surrounds him. The police many not interrogate about any crimes unless the lawyer is present and valid waiver obtained OR the defendant initiates further communication, exchanges, or conversations with the police. What constitutes further communication with police? In Oregon v. Bradshaw the Court ruled that communications, exchanges or conversations are initiated for the purposes of Edwards rule by any comment or inquiry that can be fairly said to represent a desire to open up a generalized discussion relating directly or indirectly to the investigation. Comments or inquiries relating to the routine incidents of custodial relationship do not further communications.

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Davis v. United States (1994) the suspect must unambiguously request counsel. Facts: Petitioner was interviewed after waiving his rights to remain silent and to counsel, both orally and in writing. An hour and half into the interview, the petitioner says: Maybe I should talk to a lawyer. The interview then proceeded as follows. An hour later, the petitioner says that he wants a lawyer before saying anything else; questioning ceases at that point. Holding: After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. Reasoning: The police are not required to ask clarifying questions. If the statement is not unequivocal, the officers have no obligation to stop questioning. Note: The decision seems to put inarticulate or those who speak poor English in danger of having their invocation neglected.
THE

SIXTH AMENDMENT RIGHT

TO

COUNSEL

AND

POLICE INTERROGATIONS

Generally

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Administration of Criminal Justice Harges Spring 2010 The Sixth Amendment provides that in all criminal prosecution, the accused shall enjoy the rightto have the assistance of counsel for his defense. This include ensuring right to counsel at trial for crimes involving imprisonment as well as police interrogations that occur after adversarial proceeding have begun (all efforts by police to deliberately elicit statements from a person after formal criminal proceedings have been initiated).

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Sixth Amendment Right to Counsel During Interrogations


Massiah v. United States (1964)
Facts: Massiah was indicted on several federal narcotics violation and conspiracy to possess narcotics aboard a United States vessel. He retained a lawyer, pled not guilty, and was released on bail. A codefendant, Colson, also retained a lawyer, pled not guilty, and was released on bail. Colson then invited D to discuss the pending case in Colson's car, parked on a city street. Unknown to D, Colson had agreed to cooperate with federal agents in the ongoing investigation. A radio transmitter was placed under the seat in Colson's car, enabling a nearby federal agent to hear and record the conversation between the two defendants. During the conversation, D made several damaging admissions. On the basis of these admissions, D was convicted of several narcotics offenses. D's convictions were affirmed by the U.S. Court of Appeals. D appealed. Holding: Law enforcement officials may not attempt to interrogate and deliberately elicit a confession from a defendant after indictment without the presence of counsel. This would violate defendant's 6th Amendment right to counsel. Reasoning: A defendant is most in need of a lawyer's help after indictment. Furthermore, to accord a defendant any less right to counsel at this stage of proceedings than what he is entitled to at trial itself would deny a defendant "effective representation by counsel." Since the current case is a federal prosecution, the 6th Amendment guarantee to counsel is at stake. Whites Dissent: The majority's holding goes far beyond the intent of the constitutional protections against self-incrimination and the right to counsel. The intent historically has been to prevent coerced confessions. The majority's holding now will prevent admission into evidence of any voluntary pretrial statement or confession made without counsel's presence or consent. Unanswered Questions: (1) when do adversarial judicial proceedings begin?; (2) what is deliberate elicitation; and (3) what constitutes a valid waiver?

Escobedo v. Illinois (1964) in the same year as Massiah, the Court extended the Sixth Amendment right to counsel to those who were questioned by the police but had not yet been formally charged. However, the decision in Miranda a year later made this protection unnecessary under the Sixth Amendment since it is guaranteed now under the Fifth Amendment.

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Administration of Criminal Justice Harges Spring 2010 Kirby v. Illinois (1972) the Court held that the Sixth Amendment right to counsel at police identification procedures (such as lineups) applies only at or after the initiation of adversary judicial criminal proceedings whether by way of formal chare, preliminary hearing, indictment, information, or arraignment. Brewer v. Williams (1977) 5 to 4 decision
Facts: Williams was convicted of killing a ten-year-old girl after he abducted her from a YMCA wrestling tournament. After his arrest, but before his trial, he met with with lawyer during his arraignment and was advised not to say anything. Before being transferred to Des Moines, to speak to an attorney there, the transporting police officers promised not to question Williams. During the drive the officers, knowing Williams was a deeply religious man and was a former mental patient, spoke about how the girl deserved a "Christian Burial". Williams then made incriminating statements and led the officers to the girl's body. Williams was tried and convicted of murder, and then petitioned for habeas corpus asserting that he had been denied his constitutional right to the assistance of counsel, and further ruled that he had not waived that right. Holding: The Court held that the speech by the officer was unlawful interrogation in violation of defendants Sixth Amendment right to counsel. Note: This case also addressed the unanswered questions from Massiah case: Adversarial judicial proceedings commence with: Filing of formal charges; preliminary hearing; indictment; information (Follows a preliminary hearing when there has been a finding by a judge that there has been probable cause); arraignment; and possibly an arrest warrant (but this is distinguishable from the rest of the list because there has not been a commitment by the prosecution to go forward with the case, even though there has been a judicial determination of probable cause). Derives from language of 6th Amendment: Right is guaranteed to the accused; Court said that this is not a mere formalism What is Deliberate Elicitation? Deliberate elicitation is tantamount to interrogation What is a waiver of 6th Amendment right to counsel? No explicit waiver in this case. Court said that waiver would have been valid if police had repeated warnings to see if Williams was willing to relinquish right.

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Sixth Amendment Right to Counsel is Offense Specific


A key distinction between the Fifth Amendment and the Sixth Amendment is that the latter is offense specific.

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Facts: While under arrest for an unrelated offense, Cobb confessed to a home burglary. Cobb, however, denied knowledge of the disappearance of a woman and child from the home. In 1995, after counsel was appointed to represent him in the burglary case, Cobb confessed to killing the woman and child to his father, who contacted the police. Cobb, now in custody, waived his rights under Miranda and confessed to the murders. Cobb was then indicted, convicted, and sentenced to death. On appeal to the Texas Court of Criminal Appeals, Cobb argued that his confession should have been suppressed because it was obtained in violation of his Sixth Amendment right to counsel, which he claimed attached when counsel was appointed in the burglary case. In reversing, the court held that once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely factually related to the offense charged. Holding: the Sixth Amendment right to counsel does NOT extend to crimes that are "factually related" to those that have actually been charged. Reasoning: Because the Sixth Amendment right to counsel is "offense specific," it does not necessarily extend to offenses that are "factually related" to those that have actually been charged. Since the right to counsel was offense specific, and the offenses were separate, the "Sixth Amendment right to counsel did not bar police from interrogating [Cobb] regarding the murders, and [Cobb's] confession was therefore admissible." Blockburger Test: The double jeopardy test can be used to determine the offense specific test under the Sixth. The test to determine whether there are two different offenses or only one is whether each provision requires proof of a fact which the other does notif so, the offenses are different. Breyers Dissent: Define it in terms of the conduct that constitutes the crime that the offender committed on a particular occasion, including criminal acts that are "closely related to" or "inextricably intertwined".

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Waivers
Michigan v. Jackson (1986)

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Facts: Respondents, at separate arraignments in a Michigan trial court on unrelated murder charges, each requested appointment of counsel. But before respondents had an opportunity to consult with counsel, police officers, after advising respondents of their Miranda rights, questioned them and obtained confessions. Both respondents were convicted over objections to the admission of the confessions in evidence. Holding: The confessions should have been suppressed. Reasoning: The assertion of the right to counsel at trial is no less significant than during interrogation, and the need for additional safeguards no less clear, when that assertion is made at an arraignment and when the basis for it is the Sixth Amendment. If police initiate an interrogation after a defendant's assertion of his right to counsel at an arraignment or similar proceeding, as in these cases, any waiver of that right for that police-initiated interrogation is invalid.

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Patterson v. Illinois (1988) The Court held that Massiah does not apply to a defendant who is not represented by counsel and has never requested counsel. The SC distinguished Jackson on the grounds that the defendant there had expressly invoked his right to counsel. The defendant waiver here of his Fifth Amendment right pursuant to Miranda was sufficient for a waiver of his Sixth Amendment right to counsel. Montejo v. Louisiana (2009)
Facts: Montejo was convicted and sentenced to death for murder. At his trial, the prosecution submitted as evidence a letter of apology he wrote to the victim's wife. Montejo wrote the letter at the suggestion of a detective who accompanied him in a search for the murder weapon. Before the search, Mr. Montejo was read his Miranda rights and wrote an explanation for his participation in the search. However, no one in the search party knew, including Mr. Montejo, that he had been appointed an attorney the same morning. Mr. Montejo contended under these circumstances that the Sixth Amendment barred the introduction of this evidence since his attorney was not present when he wrote and submitted the letter of apology. Holding: After the appointment of an attorney, a defendant does NOT need to take additional steps to accept the appointment in order to secure the protections afforded by the Sixth Amendment Reasoning: The Supreme Court overruled its prior decision in Michigan v. Jackson which held that evidence obtained through interrogation after the defendant has invoked his right to counsel was inadmissible. The Court reasoned that the Jackson framework was unworkable in jurisdictions that appoint counsel regardless of a defendant's request. Instead, the Court stated that the protections afforded under Miranda, Edwards, and Minnick were sufficient to protect a defendant's Sixth Amendment rights from police badgering that might elicit culpable evidence.

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Stevens Dissent: He argued that the majority correctly concluded that the Louisiana Supreme Court misapplied the Court's holding in Jackson, but disagreed that the Court should have overruled its precedent entirely. Rather, Justice Stevens criticized the Court for misinterpreting the rationale of Jackson and undervaluing the role of stare decisis in its decision making. Justice Breyer also wrote a dissenting opinion, highlighting the consistency of his reasoning with respect to stare decisis in several other cases.

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What is Impermissible Police Eliciting of Statements; when can informers be used?


United States v. Henry (1980)
Facts: Informant is placed in cell by FBI and told to be alert. Conversations occur between him and target of elicitation. Holding: Court said deliberate elicitation had occurred. Factors: (1) Informant had been paid (incentive); (2) pretended to be a fellow inmate. Reasoning: Sixth Amendment violated by creation of situation likely to induce Henry to make incriminating statements without the assistance of counsel.

Kuhlmann v. Wilson (1986)


Facts: Informant is placed in cell and told to record what he hears, but not to ask any questions. Holding: No violation of the Sixth Amendment right to counsel. Reasoning: Court says that the government must do more than simply listen in order to constitute deliberate elicitation so no violation of Sixth occurred. Distinguished Henry where informant stimulated elicitation.

Kansas v. Ventris (2009) the court held that statements obtained in violation of the Sixth Amendment right to counsel may be used for impeachment purposes.

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Other Helpful Notes


What happens after a warrantless arrest? A Gerstein review takes place within 48 hours to determine if there was probable cause. What happens after a warrantless search? Defendant files a motion to suppress and the burden is on the prosecution to show that the search was reasonable (any warrantless search is presumptively unreasonable) Warrantless Arrest and Search of Persons There is a strong preference by USSC for the use of arrest warrants and search warrants. Warrant is issued on p/c by neutral and detached magistrate particularly describing the place to be searched, and the person or things to be seized. ** The admission of an involuntary confession is subject to a harmless-error analysis ** The issue of voluntariness is a legal issue to be determined by the judge; it is not a factual issue. ** The prosecution must prove that a defendant's confession was voluntarily given by a preponderance of the evidence. ** A confession is not involuntary if police lie to suspect and tell him that his accomplice had already confessed. ** In order for a confession to be found involuntary under the 14th amendment due process clause, the confession must be obtained by coercive police conduct. ** Be sure on the final exam to explore "confession" questions under all three sources of the law (14th, 5th, and 6th amendments) Due Process (14th and 5th) - Is it voluntary? 5th Amendment - Miranda? ** The Miranda decision held that ANY statement given by suspect, after they have elected to remain silent, is found to be under compulsion ** Unsolicited statements can be used against the suspect at trial, even after Miranda ** Studies showed that, after the Miranda decision, people were still likely to talk to police even after given the Miranda warnings.

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Administration of Criminal Justice Harges Spring 2010 ** A person arrested at his home and questioned there must still be given his Miranda warnings b/c he is sufficiently "in-custody" ** A person questioned in an interview with a special agent of the IRS may not be protected by Miranda warnings because they are free to leave and not "in-custody". ** The determination of whether a person is in custody is an objective test (reasonable person standard). ** Common interrogation methods: Air of confidence; Why did you do it?; Cops patience and perseverance; Trickery (i.e., the fake ID or reverse lineup); Environment (i.e., isolation) ** Benefits of an attorney: Keep defendant from saying anything; A witness to the interrogation techniques ** Under current USSC jurisprudence, the suspect's education, intelligence, and prior experience with law enforcement cannot be used to determine if she is in custody. The court said "maybe" in respect to consideration of the age. (Alvarado) ** Roadside questioning during a traffic stop is not "custodial" to require an officer to advise of the person of their Miranda rights. ** Under current Miranda analysis, it is not required that a suspect be advised of her Miranda rights immediately upon her arrest. Miranda safeguards come into play whenever a person is (1) in custody; and (2) is subjected to either express questioning or its functional equivalent. ** The usual traffic stop is more analogous to a Terry Stop than to a formal arrest. (Berkemer) ** Miranda warnings during custodial interrogations ARE required even when the suspect is arrested and questioned about minor offenses. (Berkemer) ** Voluntarily agreeing to interview at police station is not a custodial interrogation. ** Interrogation under the Miranda case includes direct questions or the functional equivalent. (Innis) ** Direct questioning of a suspect by a law enforcement agent while the suspect is in custody will NOT always require the Miranda warnings before questioning. (Perkins) ** The Miranda rule does NOT require that the content of Miranda warnings be a virtual incantation of the precise language contained in the Miranda decision before questioning. (Prysock or Duckworth). ** The Miranda rule is NOT violated when a suspect is not told explicitly that he has the right to have an attorney appointed without cost before questioning.

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Administration of Criminal Justice Harges Spring 2010 ** A witness's testimony discovered as a result of a Miranda violation is admissible in court. ** A piece of evidence discovered as a result of a Miranda violation is admissible in court. ** A second confession given after Miranda warnings during a custodial interrogation one hour after an initial confession that was taken in violation of Miranda is admissible in court even if it was knowingly and voluntarily made. (Elstad).

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