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SEARCH AND SEIZURE

4A: The right of the 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 places to be searched, and the persons or things to be searched. The Reasonable Expectation Test Katz v. US 1967 - Sct held he had a reasonable expectation of privacy the person has the right to be secure or to have reasonable expectations that he or she is operating in private and govt when infringes on this equals a search

A search has occurred if: Subjective manifestation of a privacy or possessory interest. Society must accept that expectation as a reasonable one.

A legitimate privacy interest is p. 41 Physical disruption and inconvenience Personal or embarrassing information Control over and use of property. But NO legitimate privacy interest in illegal activity.

Application of Katz principle prong 1 No legitimate privacy in an open field. (Oliver v. United states) 44 Individuals must take affirmative steps to protect their privacy interests. Abandoning property surrenders privacy interest

Curtilage factors (United States v. Dunn) Proximity of the area to the home. Whether area is included within an enclosure. Nature of the uses to which area is put. Steps taken by the resident to protect area from observation by passing by.

Class notes: entry into any of these factors would constitute a search. Entry into the cartilage is a search however visual inspection is not a search. Manipulation of bags in Public Transport

Bond v. US the Court held that "Agent Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches." The Court concluded that Bond "possessed a privacy interest in his bag," and that such an expectation of privacy is reasonable. "Physically invasive inspection is simply more intrusive than purely visual inspection. In moving other peoples luggage you dont squeeze, you move it

Thermal Imaging Kyllo v. US. : The use of a device by the government, which is not generally used by the public, to obtain evidence from inside a home is a presumptively unreasonable search without a warrant under the Fourth Amendment of the United States Constitution (Constitution). Rational: The Fourth Amendment protections are not conditional upon the quality of information obtained by the government. So long as there is a subjective expectation of privacy and society is willing to recognize this expectation as reasonable, the government must obtain a warrant before conducting a search Access by members of the public After Katz, Court has held that if an aspect of a persons life is subject to scrutiny by other members of society then no legitimate expectation in denying equivalent access to police.. Consensual Electronic Surveillance - US v. White can you have a cop undercover who has a conversation who is wired, without a warrant and records another person b/c officer has a right to be there in the conversation you could say there is no expectation of privacy Financial Records - California Bankers v. Schultz banks have to keep certain records on customers and if govt requests records is that a search? The Sct. Said the customer has no reasonable expectation of privacy, because you have opened up to a third party the bank and its employees. o The govt can gather information about you w/o reason and put it in a computer Pen Register Smith v. M.D. device to track all your out-going calls. Sct. Said its ok no privacy rt to not get pen register put in phone, b/c we say so, no real reason. Pagers cop arrests someone and seizes pager if numbers are coming across and it is on cop can look at it. o Once the cop has received it, no one on the outside has a reasonable expectation of privacy it could be anyone on the other line. o If a cop lawfully takes a pager from someone and wants to see the history that is a search and a warrant is needed. Trash - California v. Greenwood similar to US v. White it is not a search when the cops go through your garbage. Air View - California v. Ciraolo - cops flying overhead is not a search, b/c everyone expects planes to fly over. Air Enhancing - Dow Chemical Co. v. US - it is in an open field and gets protected more so than the barn this is the opposite than what any framer would imagine that a business would get more protection that an individual. Helicopter - Florida v. Riley most outrageous case out of them all. hovering over guys house 400 feet up to engage in surveillance not a search. Canine Sniff - Place v. UStwo ways to look at it. But, Sct - Not a search.

US v. Verdugo-Urquidez 314A does not apply to a search of property that is owned by a nonresident alien and located in a foreign country.Did not answer the specific question of whether an undocumented immigrant is protected by 4A.

Investigative activity conducted by a private citizen -- 76 Remember - 4th Amend only protects us against govt actors, not private individuals. If FBI gets a company to put beeper or tracking device in something such as a satellite dish, this is a gray area.

THE WARRANT CLAUSE


Searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the 4A- subject only to a few specifically established and well-delineated exceptions. Katz v. United States The Reason for the Warrant Clause Johnson v. US (85) Court invalidated the searches because the officers had no search warrants and could not bring the cases within any exception to the warrant requirement. Probable cause determination must be made by a judge, not police officers.

Rational for making people get warrants: Protection in requiring that the entrances be authorized by a neutral magistrate and not a cop involved in the situation to complete the search. Neutral magistrate in between the public & govt. 4A requires that probable cause must be determined by a neutral and detached magistrate rather than by the officer engaged in the often competitive enterprise of ferreting out crime. Function of Warrant Clause: PC as threshold of proof. Government must demonstrate a factually-based interest in people, places, and things BEFORE using its power to disturb them. This is thought to protect against unjustified searches and seizures. Probable Cause: 4A mandates PC as justification for a search warrant. Does not require certainty Only requires a sufficient likelihood PC is not undermined if conclusions were mistaken So what level of PROBABILITY is required by 4A? Problem: Hearsay from informants Demonstrating Probable Cause Spinelli two prong test(90) - member of organized crime FBI follows him for ten days into and out of St. Louis. They have informers tip, known information, phone numbers given to them by informants. Magistrate issues warrant and Sct strikes it down Aguilar (1964) test used in Spinelli.

Illinois v. Gates 97 : Overruled the above No longer controlling under the 4A and 14A. however two pronged test remains sufficient, just not necessary. (1) basis of Reliability of information person giving info (2) sources info sufficient to give PC - credible? Police get anonymous letter who predicts that Sue Gates will drive from IL down to FL and husband will fly down. Police find out that hubby Lance is flying down, and sure enough he goes to hotel and he drives back from FL. Informant has predicted everything so far, but informant said wife would fly back and she didnt she drove back. Informant says car will be loaded with drugs. Standard of proof: Particularized facts to lead a common sense person of reasonable caution to believe that there is a fair probability of criminal activity. Probable cause is applied in light of a common sense evaluation of the totality of the circumstances. Court decides that the two-prong test was not worth the effort. Implements the totality of the circumstances approach (4 factors on pg 107) Two prongs remain highly relevant

ANONYMOUS INFORMANT TIP: Two Prong Test for Tipsters (BASIS OF KNOWLEDGE PRONG) : Magistrate be furnished with the underlying circumstances that have led an informant to reach conclusions regarding criminal activity. (VERACITY PRONG) : Officers must support claim that the informant is credible or reliable.

Why do both prongs have to be met? The validity of a conclusion depends both on the nature of the raw information on which it is based and on the truthfulness of the reporter of that information. In addition, has the information submitted established a fair probability of criminal activity? PrandyBinnett, p. 114 (ct held police had PC) Informants and Anonymous Tips Presumptively unreliable -Dubious character -Financial arrangements -Other arrangements -Using anonymity for suspect reasons Ordinary citizen Presumptively reliable Motivated by concern for society or their own safety Accomplices Confession of a co-participant is ITSELF sufficient to establish PC. No corroboration required.

Probable Cause to Arrest


PC to arrest is determined by whether there is a fair probability to believe that the person arrested has committed a crime. 4

Maryland v. Pringle (2003): (121) If officer finds drugs in a car, does he have probable cause to arrest everyone in the car. Pringle appealed a conviction, based on lack of probable cause, when he was arrested for paraphernalia found in the back of another persons a car, while sitting in the front. Rule: When a reasonable officer can conclude that a defendant is guilty, probable cause exists. Ct found that officer had PC to believe that Pr

Devenpeck v. Alford (2004) the Court held that police had probable cause to arrest Alford for
impersonating a police officer, despite the fact that this was not closely related to the offense police identified during the arrest. A warrantless arrest by a police officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe a crime has been or is being committed. The offense establishing probable cause need not be closely related to the offense the arresting officer identifies at the time of arrest. An arresting officer's state of mind, except for facts he knows, is irrelevant to probable cause. Does an arresting officers subjective reason for making the arrest have to be the actual facts that provide probable cause? Subjective intent is no basis for invalidating an arrest. PROBABLE CAUSE: Specificity and Reasonableness 1. Things that can be seized 2. Location of evidence 3. Searches of non-suspects premises 4. Describing place to be searched 5. Particularity for arrest warrants 6. Describing things to be seized 7. Reasonableness and warrants 8. Details of warrant 9. Anticipatory warrants 10. Sneak and peek warrants Things that can be seized Warden v. Hayden (1967)129 Mere evidence rule: Defendant was pursued to his home, and arrested. Evidence used against him was found during a search that was unwarranted. Rule of Law. The exigencies of the situation, in which the officers were in pursuit of a suspected armed felon in the house which he had entered only minutes before they arrived, permitted their warrantless entry and search and the distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is no longer accepted as being required by the Fourth Amendment. PC as to location of evidence 131 Searches of non suspects premises 132 Describing place to be seized 135 Describing things to be seized 140

Andresen v. Maryland (1976) (particularity requirement) State authorities obtained search warrants to search the defendant, Andresons (the defendant) law office, for papers evidencing a fraudulent sale of land. Rule of Law. The Fifth Amendments protections against self-incrimination do not apply to information obtained from papers or other documents which are properly seized. Computer searches 143 Anticipatory Warrants 147 1. 2. 3. U.S. v. Grubbs (2006) No different than ordinary warrants It is now probable that Contraband, evidence, fugitive will be on described premises When warrant is executed Likelihood that condition will occur is part of analysis

Sneak and peek warrants 149

EXECUTING THE WARRANT Federal Knock and Announce Statute Provides that a law enforcement officer may break into premises to execute a search warrant if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant. United States v. Contreras- ceballos :Purpose of Knock and Announcement Requirement is to Protect citizens and law enforcement from violence,Protects individual privacy rights and Protects against needless destruction of private property Constitutional basis for requirement : Wilson v. Arkansas pg 151 When search can be conducted o Usually searches must be conducted during day-light. How long to wait : Knapp 151 12 second delay and then break in OK

Exceptions to Notice Rule Emergency Circumstances Richards v. Wisconsin court rejected a per se exception of knock rule for felony drug crime but finds reasonable suspicion is enough. WI Sct allowed it, because most drug crimes deal with guns and violence. o Sct Stevens says no cant have rule like that, b/c you could have a house where no one is home, grandma home alone. 6

Court upholds entry under circumstances

No knock Entries and Destruction of Property U.S. v. Ramirez Sct rejected argument that there has to be a heightened standard of exigent circumstances when property damaged. o If warrant says you can look for drugs and drug items can pull up floors that appear loose and dry wall that appears recently replaced cops dont have to put it back test is reasonableness o If warrant is for a machine gun cant look in small box but if for ring, can look anywhere. The smaller the object in the warrant the broader the search will be.

Exigent circumstances after knocking 156 Violation of the knock and announce requirement does not justify exclusion of evidence. Hudson v. Michigan 157

Use of Distraction and Intimidation Devices Myers flash bang entry military assault. Was this unreasonable Ct. says no, b/c suspect had violent background with criminal activities.

Unnecessarily Intrusive Searches Hummel Jones lower court case, civil rights case couple goes to Birthing clinic she has a baby, unfortunately there is a sheriff who thinks there is illegal birthing going on Search executed with warrant, couple detained as evidence. o Sct says unreasonable fact that she had a baby doesnt mean she was practicing medicine in clinic anyone can give birth anywhere and the couple was not listed in the warrant. Exceeded scope of the search. When does search end when police are satisfied that they have seized what they are looking for and feel that they have found all that they can. Third Parties may assist 163 be compelled or volunteer (US v. NY) Press cant be invited to help as deterrent 165 Wilson v. Lane Sct held that violation of civil rights to invite media to arrest, b/c not there to assist, but for their own interests. Cops argued publicity of arrest works to deter crime. Sct says that has nothing to do with why you got the warrant the warrant was issued for a limited purpose and the media couldnt have been there to help in that.

The Screening Magistrate Johnson the magistrate is the screener, heart of 4th, b/w citizen and the cops 7

Magistrate must be neutral, not a prosecutor (Coolidge v. NH). Magistrate not to be a rubber stamp. Legal Training - Shadwick magistrate need not be a lawyer, can issue warrants for minor offenses breach of peace, trespass. o Federal wire tape requires that only a federal judge can issue them or in states a trial judge can approve a wire tape warrant. o In federal system the magistrates are pretty good b/c Cong has set standards. o Gates assumes non-lawyers can serve o Magistrates dont have to give a statement of reason and in fact they are taught to say nothing, b/c if you say nothing ct will give you benefit of the doubt. o If rejects it they dont have to say why, but they usually do say hey I need x,y,z.

WARRANT REQUIREMENTS A search or seizure is presumptively unreasonable in the absence of a warrant. This presumption can be overcome in a variety of circumstances. Warrant Requirement has been described as: Fundamental Absolute Cardinal principle With few exceptions

Arrests in Public - Constitutional Rule 171 Watson (1st of important case) arrested for stolen credit card Watson was dealing with a govt informant Khoury . Does the rule that warrantless searches are per se unreasonable have an analogue for public felony arrests?No - public felony arrests can be reasonable without warrants. An officer who has probable cause to arrest a suspect can bypass the warrant process.

No warrant required for public arrest o Even if the officer could have easily obtained a warrant. o Still must have probable cause. Typical standards for warrantless public arrest Officer must have reasonable cause to believe that such person has committed a. A felony b. A misdemeanor AND c. Will not be apprehended unless immediately arrested d. May cause injury to himself or others or damage property e. Done in the officers presence Atwater (2001) Traffic Stop A mother was taken into custody for violation of Texas strict seatbelt law. She subsequently sued for Fourth Amendment violations. 8

Rule of Law. The standard of probable cause applies to all arrests, without the need to balance the interests and circumstances involved in particular situations. 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 4A, arrest the offender. Deadly Force: Tennessee v. Garner Imposes limitations on the use of deadly force in making an arrest. Deadly force may be used against felon IF: Necessary to prevent escape AND Officer has probable cause to believe suspect poses threat Permissible use of force during arrest is dependent on the circumstances and governed by a standard of objective reasonableness. Factors for evaluating excessive force Severity of crime at issue Whether suspect poses an immediate threat Whether suspect is actively resisting arrest or attempting to evade arrest by flight High-Speed Chase: Scott v. Harris Upholds conduct of a police officer who rammed suspects car in a high speed chase. Court found it reasonable given the risks created by the subject who drove recklessly away from officers. Excessive force and public arrests: Forrester v. City of San Diego 176 Enforcement of 4A can be somewhat animated by the substantive goals of the police activity. McLaughlin 179 Class action suit, Ps want 36-hour rule for post warrantless arrest hearing. Majority hearings must be prompt, not immediate. 48 hours is presumptively reasonable, but may be too long in particular cases. Remedies for McLaughlin Violation Evidence can be excluded only if it was obtained as a result of the unreasonable detention. Exclusion not required if magistrate would have found probable cause for the detention. Arrests in the home Payton v. NY warrantless entry into home to arrest invalid absent exigent circumstances or emergency you may have a felony and probable cause, but you cant enter the home to arrest unless you have a warrant or exigent circumstances. Even if you believe someone is home you need a warrant to get in. Sct protects home. o Search warrant not needed if Reasonable Suspicion that suspect is home and arrest warrant issued. o If you lure them out; not in home. If you break in then unreasonable entrance.

Warrantless Arrests in a Third Partys Home

Officers armed with only an arrest warrant can enter suspects home if there is reason to believe that he is within. Steagald absent exigent circumstances or consent a search warrant is required to look for suspect in 3rd partys home provided suspect is not a resident protect privacy interest of homeowner.

Overnight guests : olson arrest warrant needed it is their home for the night. They must be there a reasonable time Payton and olson say if you are an overnight guest or a home-owner the cops need a warrant. Only you are protected by the warrant, not house nor person in home.

Temporary Visitors Minnesota v. Carter temporary visitors dont get protection. No warrant needed Property gets protection only person whos home it is gets to complain if it is a 3rd party then the homeowner can complain, but the person arrested cant o Sct makes it clear they protect property unless probable cause and then once inside only the home-owner can complain.

STOP AND FRISK 193 Terry v. Ohio Officer McFaddeen sees Terry and Chilton on street walking and casing a store, joined by third guy who leaves and they all leave. McFadden is suspicious, so he followed them - got them all in store - patted them down. Terry and Chilton had guns. Terry rule: If a police officer has reason to believe s/he is dealing with an armed and dangerous individual, then s/he may conduct a reasonable search for weapons for the protection of the police officer. Terry search: A reasonable suspicion that an individual is armed and dangerous OR Probable Cause Adams v Williams : D was convicted in Connecticut state court for illegal possession of a handgun found during a stop and frisk and heroin found during a search incident to this weapons arrest. Rule of Law. Reasonable cause for a stop and frisk can be based on more than the officers personal observation, but also on information supplied by another person. Mimms 204 traffic violation and cops have right to stop him and arrest or give citation. Officer may order person out of car o If cop stops car, he has the right to control the situation Safety issues. Md v. Wilson207 mimms applies to passengers --for safety, as practicality cops can control the situation Tinted windows a new problem cops can tell you to roll down windows. NY v. Class officer may move papers to see VIN

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SEIZURES
Standard for seizures: Seizure means restricted movement as a result of force or show of authority. Michigan v. Long 209 ct held that police officers with a search warrant for a home can require occupants of the premises, even if leaving when the police arrive, to remain while the search warrant is executed. When does a seizure occur? 212 Free to leave test : Mendenhall --- seizures occurs when reasonable person would believe she is not free to leave. No seizure UNLESS a reasonable person believed that he was not free to leave. Threatening presence of several officers Display of weapon Physical touching - Use of language/tone

Florida v. Royer: ticket remained in officers possession. Florida v. Bostick officers with badges, insignia and zipper pouch board a bus ask to see IDs and tickets and they look at everyone and pick him out. They say they are doing a drug interdiction and he allows search. o Sct says you dont feel free to leave b/c the bus will leave without you that it isnt the cops with guns that keeps you there o Ct says a reasonable person would feel free to decline officers request to search.

US v. Draytonofficers with visible badges and concealed weapons board bus. Two stationed at door and rear while other questions passengers. Obtains consent to search. o Sct held not seizure and cites Delgado everyone felt free to leave. o Souter says there is an air of unreality about the Courts explanation California v. Hodari D228 physical touching is seizure, but failure to submit to authority is not. A kid asked to stop takes off running and is talked by the cop. The question is when is he seized if cops say stop and you dont you havent been seized (no submission to the show of authority to be seized w/o physical touching you have to submit) but you might give the cops reasonable suspicion to detain you either way Ashcroft v. Kidd Ct stated that al-Kidd's lawyers had not met the high burden of proof needed to show that Attorney General Ashcroft could be personally sued, that he was directly involved or had explicit knowledge of the events (suggesting the matter was handled mostly by distant subordinates). GROUNDS FOR A STOP (Probable cause not required) 11

REASONABLE SUSPICION What is the source of information? Is the information sufficiently suspicious? Court uses same totality of the circumstances approach from Gates (probable cause) RS v. PC RS is LESS DEMANDING STANDARD than PC. Thus, RS can be established with information that is less reliable than that needed for PC Source of information Anonymous Tips Alabama v White tip that White would carry narcotics from apt to motel reasonable suspicion can be less reliable and different in quantity and content from PC but need RS.ct held that anonymous tip that was significantly corroborated by a police officers investigation provided reasonable suspicion for a stop Florida v. JL man in particular bus stop and wearing a plaid shirt was carrying a gun, not good enough. Here, anonymous tip only dealt with current information.here was no predictive information. No firearms exception to reasonable suspicion

Tip about reckless driving 238 Tip about domestic violence 239 Quantum of suspicion 241 United states v. Cortez (test for reasonable suspicion) US v. Arvizu (2002)243 (totality of the circumstances) RS determinations must look for PARTICULARIZED basis OBJECTIVE basis After tripping magnetic sensors on a common smuggling route with his mini-van, respondent was observed and eventually stopped by a border agent. A search of the van revealed 100 pounds of marijuana. Rule : When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. Exceptions to Warrant Requirement for SEARCHES Search incident to arrest Exigent circumstances Automobile doctrine Inventory searches Consent searches Plain view

Frisk Cannot be used to search for Evidence

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Minn v. Dickerson Frisk is protective only for weapons and contraband. Once the cop has seen that no weapon, he cant go on. o However, if the cop feels a baseball size rock of crack, he can tell it is contraband. The officer may seize it, and it is admissible as evidence.

Suspicion required to frisk Russ right to frisk -- like Adams tip that woman passed gun to man in car - -did they have reason to fear for safety. No cop would go if he wasnt allowed to frisk when under suspicion that gun is in the car.

Rideau police in high crime area see apparently drunk man in public, he looks nervous they approach and frisk. Majority, no overreaction. o Dissent Judge Smith, very conservative say no cant frisk him, he was only stopped because he didnt go to charm school and that many other innocent people will be frisked.

Protective Searches beyond the Suspects Person 265 Michigan v. Long ct held that the power to search under Terry can extend to protective examinations of areas beyond the person of the suspect. Long extended to locked glove compartments and other objects if you believe person could be a danger to officer later cops can now open it probably goes for locked brief cases. o As long as reasonable concern that person is armed and could be dangerous then after terry stop can search car. Certain things you still cant open envelop, wallet, but the terry stop has been expanded a lot.

Protective Searches of Persons other than the suspect Ybarra v. Ill cops walk into bar with warrant and automatically frisk a bar patron Sct held cant automatically frisk, but you can detain people from leaving the premises who live there. Ct says in bar there is no reason to believe that if you find what you are looking for you are going to arrest a patron. Officers can only examine objects that could be weapons

Protective Sweeps MD v. Buie can do a protective sweep of the house only allowed to look for other people that might be in house cant look in cabinet, but can look in other rooms - -as long as reasonable suspicion that accomplice might be present.

Arrest v. Stop brief and limite detentions 13

Royer airport search case. Cops ask if can talk to him and show driver license, hey says yeah and cops ask him to go to room outside of public and w/o his permission brought his luggage up. Ct says once he is moved into room the stop turned into arrest. Also consent is tainted where it was obtained while Royer was under arrest and officers had only reasonable suspicion and not PC to believe he was involved in drug activity

Forced movement for identification purposes 271 Hicks factory holdup reasonable suspicion. There is a broadcast at 4am (key item) that two black males 55. Ct says it is enough for RS and back at factory gave rise to pc - Officer may ask for ID, run computer check 272 - Purpose of stop is to determine if there is probable cause Hibel (272)officer has a right to demand identification as part of a investigation during a Terry stop.

Consensual Encounters after a stop has ended OH v. Robinetteofficer may ask questions and for consent after returning driver license and giving warning.

Interrogations and Fingerprinting Pursuant to a Terry Stop Dunaway v. NY cant take person to station w/o PC for questioning this is an arrest

Fingerprinting 275 can do it with reasonable suspicion in the field, but cant take suspect to station. Davis v. miss and hayes v. FL Time Limits US v. Sharpe suspect extended time when fled and did not cooperate, so he cant complain. o Generally speaking anything over an hour is too long if no probable cause

Show of force is permissible during Terry Stop if protecting safety - putting in handcuffs. Stop and Seizure Issues Show of Force after a Terry Stop Oliveira v. Mayer 3 dark skinned males, expensive video camera, dilapidated station wagon in affluent white area driving while black example cops use 6 cruisers and make men get out at gun-point. No reasonable suspicion violated 4th rts.

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Detention of Property under Terry US v. Van Leeuwen detention of a mail package for a day holding it to see if going to get a warrant. Holding it to decide if probable cause allowed.

Unreasonable Detention US v. Place use of marijuana sniffing dog 90 minute delay when cops had warning that suspect was coming into airport violated time allowed under Terry.

Limited Searches by cops for Evidence under Terry 282 Arizona v. Hicks Weapon is fired in apt building and goes through ceiling and people called cops and they went and knocked on door and went in even though no one answered cops had either RS or PC to go in and exigent circumstances to go into apartment gun fired. o Cops enter and find that no one was there no danger. o However, cops see a nice stereo in a crappy apt, so they call in the number. Cant justify this search of number under terry, b/c not looking for weapons. Cop was looking for serial number and that was itcop had no right to look for serial number on stereo. Scalia

Reasonable suspicion search of probationers house US v. Knights Ct doesnt decide if consent is valid, wont decide if searches w/o reasonable suspicion is valid. o Court says reasonable suspicion is enough to search a persons house on probation person is not in prison, but still not totally free.

Warrantless searches are per se unconstitutional subject to a few exceptions


If warrantless search and seizure comes after arrest If warrantless need judicial review of probable cause within 48 hours o Terry stops reasonable suspicion can turn into warrantless arrest. Pat-down, warrantless supposed to have reasonable fear of danger.

SEARCH INCIDENT TO ARREST SITA Triggered whenever there is a lawful arrest. Does not require a demonstration of probable cause to search. Authorizes a search of the person and area within the defendants immediate control. Rationale 1. Prevent escape / officer safety 2. Prevent arrestee from concealing or destroying evidence.

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Chimel v. California (1969) arrest at home, he is not there, wife invites the cops in, they have arrest warrants coin shop burglary, but no warrants to search the house, they search. 1. An officer who makes an arrest may automatically neutralize the suspects grab area (even without suspicion). 2. The area may not be broader than the rationale supporting it. Post arrest movements 293 Washington v. Chrisman officer accompanies student to room after kid buys alcohol to see ID, cop goes with kid and sees pot and lsd in room so he seizes it. o Court says cops entry is valid. Incident to arrest and necessary to make sure the kid isnt going in to destroy evidence and also to protect kids safety.

EVERY arrest is presumed to present a risk of danger to arresting officer. No way to predict how a particular subject will react to arrest. THUS, automatic search for evidence in grab area is allowed regardless of circumstances Protective Sweep AFTER arrest 295 Can police sweep AFTER valid arrest OUTSIDE grab area? Yes, if there is RS that the area swept harbored individuals posing a danger. Automatic. Limited to areas where persons might be hidden.

US v Robinson (1973) 297 o reasonable belief operating w/o a valid license, PC to stop. Stops him and arrests him. The Sct says there is always a danger to cop in an arrest and Sct isnt going to come in and draw a line saying to stop. Per se reasonable to search when arrest. Officer did not conduct the search in an abusive or extreme manner. Acted consistent with the authority vested in a police officer Ct established a bright line rule permitting full blown searches when a person has been subjected to a custodial arrest. Atwater v. City of Lago Vista 301 Mother driving with kids in car without seatbelts, she is arrested and taken to jail. Cop had stopped women before and seen kid riding on the hump. She was only fined $50 and let go. She brought suit as this being unreasonable under 4th Amend. o Ct looks at History and says have allowed arrests for minor offenses and Constitution doesnt put a limit on anything. Containers:308 In US V Chadwick Automobiles: NY v Belton (1981) Entire passenger compartment of an automobile is subject to search under the search incident doctrine even if the arrestee is out of the car. Reasoning in Belton 1. Arrestee had been a recent occupant of the interior (put otherwise, he had been in the car just before arrest); 16

2. Search was a contemporaneous incident of the arrest (put otherwise, it followed immediately upon the arrest); and 3. Interior of an automobile is within the control of persons inside. Thornton v. US (2004) Recent occupant of car Belton applies. Arizona v. Gant (2009) 312 Search is limited to space within immediate control Clarify Belton and Chimel. Chimel authorized police to search a vehicle when the arrestee is UNSECURED and WITHIN REACHING DISTANCE of passenger compartment. Knowles v. Iowa 322 A police officer pulled over a speeder, issued a citation rather than arrest, and then searched the speeders car, finding drugs. The search was authorized by Iowa law even though there was no arrest. Rule: An officer issuing a traffic citation cannot search the cited persons vehicle. PRETEXTUAL STOPS AND ARRESTS Main question: Can investigatory powers as to minor crimes can be used to search for evidence of a more serious crime? Concern is about harassing/targeting minorities Whren v. US (1996) cops put in unmarked car in drug area in DC see a car that looks suspicious turn without signaling and speed away. They stop car, see drugs, probable cause, search incident to arrest. o Unanimous Court says we dont care why they are doing it, if they have reasonable suspicion they can make a terry stop. Ct gave cops power for legit reason and now they have used it to expand their search powers Courts ruling: PC is judged solely from an objective standpoint. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. The facts known to the officers do, in fact, demonstrate a sufficient government interest to outweigh the deprivation of liberty occasioned by the seizure. 4A concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent The Whren Court seemed to limit its holding to instances in which the validity of an officers actions depends on probable cause. Pretext claims will remain available in other contexts. Equal Protection Issues Equal protection comes from 14A Prohibits unequal application of law Racial categories and national origin categories are given strict scrutiny Standard: Government action must be NECESSARY to achieve of COMPELLING government PC of a traffic violation 333 Plain View and Plain Touch 335 During a stop, anything illegal in plain view it is ok to seize

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Cops can look in cars, containers, anything almost and doesnt matter if what they find is not part of reason for stop.

Horton v California armed robbery search warrant for proceeds (stolen property), only, not for the weapons. o Cops in this case show up and execute warrant no rings or other proceeds found, but weapons in plain view. Now requirements for Plain view search are o (1) Officer must validly be in place where view occurs (lawful) o (2) Item must be in plain view o (3) incriminating character must be immediately apparent Court thinks that cops wont want to cheat the magistrate, because the more items they have the longer they can search, whereas if the cops find the one item they are looking for then they would have to stop searching. Plain View Foundations If officers have a right to be in a particular place and come upon evidence that they have probable cause to believe is subject to seizure, they may seize it. (Coolidge v. New Hampshire, 1971)

Arizona v. Hicks (1987)339 search was bad so no plain view cop went further than what a terry stop permitted, so search was bad, and what he learned from it is out Still need probable cause to justify a search that precedes a plain view seizure. Plain Touch 340 Minnesota v. Dickerson - theoretically Ok, not here. o If pat down done properly, terry if you feel something that might be drugs you can make an arrest. o Court said officer didnt have cause. Can cops seize what they find in plain view o If cops were told you couldnt use plain view, and that they had to get a warrant cops would just do two searches and in the meantime they would seize the property so you would have a search, seizure, search, and then seizure and Sct says that doesnt matter well let cops make a judgment call

Automobile Exception Today, in nearly all circumstances, a citizen who enters an automobile surrenders the right to a PC warrant. The police may search or seize an unoccupied automobile without a warrant (as long as they have PC) Foundation of Auto Exception: Carroll v. US (1925): 342 Federal prohibition act in 1920s Car searched without warrant Focus was not probable cause but rather justification for warrantless search 18

Not practicable to secure a warrant because vehicle can be QUICKLY MOVED

Chambers v. Maroney A robbery suspect was arrested while riding in a car. The car was taken to the police station, searched, and yielded incriminating evidence.Rule of Law. For constitutional purposes *there is+ no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrantWhere there is PC to search an auto stopped on the highway and immediate warrantless search is constitutionally permissible. Two requirements: 1.Probable cause (constant in auto cases) 2. Vehicle stopped on public roads Justifications for Auto Exception 1. Mobility 2. Lesser expectation of privacy Texas v. White (1975) 346 It is permissible to transport a vehicle to the police station and perform a warrantless search there. Rationale: If officers take warrantless action, they should have to keep potential errors at a minimum. California v. Carney mobile home that was immobile. Exception applies to immobile vehicles; lesser expectation of privacy in cars than in homes. Two questions: 1. Are vehicles parked on public property within the automobile exception? 2. Are motor homes within the scope of the exception? Vehicle need not be stopped on the highway to qualify for auto exception. Public lot is sufficient. Application of two justifications: 1. Mobility 2. Diminished privacy exceptions Ct says b/c cars arent houses the 4th Amend doesnt apply crazy jump. Summary of Auto Exception Probable cause remains essential Includes any readily mobile mode of transportation not used exclusively for residence. Subject to search whether stopped on road or found stationary in a public place. Search wherever PC justifies may do on the spot or transport car to station and search there. Container Case: What is a container? Any object capable of holding another object. Court treats all containers alike for purposes The Court does not treat some containers as more deserving of protection than others

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United States v. Chadwick 349(1977) Court rejects govt. claim that warrant requirement should be restricted to homes, offices, and private communications. Mobility of locker justified the seizure upon PC but s a warrant was required to search it. Court refused to adopt a movable container exception to warrant requirement. Ct said you have more privacy in footlocker then in a car California v. Acevedo Rule: ANY container in a vehicle is subject to a warrantless search as long as officers possess PC to search. Doesnt matter whether PC focuses on container or entire vehicle. Acevedo questions Why abandon the warrant rule for containers within vehicle? 1. Privacy concerns in container and car are equivalent. 2. Eliminate difference by expanding scope of auto exception 3. Warrants will inevitably issue 4. Impedes law enforcement Search of passengers property 357 Exigent Circumstances 361 1. Generally: Requires the government to show two things: 1. Probable cause to search and 2. Some exigency or need to act without securing a warrant. Exception only to warrant requirement must still have probable cause to search. (Exigency: urgent, a circumstance that demands immediate attention) Exigent Circumstances: Different Types Hot Pursuit Warden v. Hayden (1967) Volatility of the situation enhances the likelihood of deadly force Police and Public Safety Warrant is excused if delay would risk 1. Harm to police 2. Harm to members of public Brigham City v. Stuart (2006) 364 - 4A generally mandates OBJECTIVE inquiry. - Bad faith of individual police officer is irrelevant. If officers had reasonable cause to believe that there was an imminent threat to public safety in the home, it was irrelevant if they used this safety threat as an excuse. Michigan v. Fisher (2009) 20

Facts did give rise to exigent circumstances: Smashed pick-up Damaged fence posts Three broken windows Blood on hood of pickup Blood on door Suspect screaming and throwing things Suspect swore at officers Suspect refused medical attention 3. Destruction of evidence Rule: if evidence will be destroyed in the time it takes to get a warrant, then warrant requirement is excused. But how do we ascertain the likelihood of the destruction of evidence? Dorman Factors (p. 367) Gravity or violent nature of offense Whether suspect is reasonably believed to be armed Clear showing of PC Strong reason to believe suspect is in premises Likelihood that suspect will escape Peaceful circumstances of entry Vale v LA (1970) There was time to get a warrant. Exigent circumstances exception only applies if: The search is substantially contemporaneous with the arrest AND The search is confined to immediate vicinity MacDonald 2d Circuit 1990 In drug cases, courts seem to be concerned about Gravity of crime Likelihood of a weapon Destructibility of the evidence Other factors to consider in destruction of evidence justifications Seriousness of the offense Murder Scene Minor Offenses Destruction of Evidence Exigency: Murder Scene Mincey v. Arizona (1978) No blanket exception for scene of homicide Officer must still make finding of exigent circumstances Destruction of Evidence Exigency: Minor Offenses If underlying offense is extremely minor, then a warrantless home arrest is unreasonable. Important factor: only a minor offense has been committed (Wisconsins law at the time (1984) made drunk driving a noncriminal civil forfeiture offense) Kentucky v. King (2011) Concerned about 5 different tests being used by lower courts re: police-created exigency 21

In this case, SCOTUS finds that conduct of police prior to entry was entirely lawful.

What if there actually WAS a prior opportunity to get a warrant? U.S. V Miles (2d Circ., 1989) Informant arranges for cocaine buy. Police monitor phone call Transaction takes place later in apartment Miles was broker Informant then leaves to get $$ Did this create exigent circumstances? What can officers do while waiting for a warrant? Segura v. US (1984) Illinois v. MacArthur (2001) It is permissible to seize a premise for a reasonable period of time while diligent efforts are being made to secure a warrant. Illinois v. McArthur Police chose less intrusive means of seizing the premises by keeping suspect outside until warrant was secured. Restraint was LIMITED and TAILORED reasonably to secure law enforcement needs while protecting privacy interests.

Administrative searches of business 383 New York v Burger: New York state statute permits police to inspect junkyards without a warrant. One operator was found to have stolen parts on his lot.Rule of Law. Warrantless inspections of a commercial entity are permitted if the entity is part of a closely regulated industry, is a substantial government interest, the inspections are necessary to further *the+ regulatory scheme, and the inspection provides the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has properly defined scope, and it must limit the discretion of the inspecting officers. SPECIAL NEEDS SEARCHES Balancing analysis can warrantless reasonable suspicion searches ever be justified? School setting States need to assure a safe and healthy learning environment Reasonable suspicion standard was sufficient to protect expectation of privacy Student expectation of privacy is diminished Safford v. Redding 396 Strip search to look for OTC pills. The Supreme Court held that Savanna's Fourth Amendment rights were violated when school officials searched her underwear for non-prescription painkillers. The Court also held that the implicated school administrators were not personally liable because "clearly established law [did] not show that the search violated the Fourth Amendment." Earls (2002) - 411

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the Court held that, because the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest. "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren All students who participate in competitive extracurricular activities required to submit to random drug testing. (No individualized suspicion required) Show choir Marching band Academic Team National Honor Society New Jersey v TLO Citing the peculiarities associated with searches on school grounds, the Court abandoned its requirement that searches be conducted only when a "probable cause" exists that an individual has violated the law. The Court used a less strict standard of "reasonableness" to conclude that the search did not violate the Constitution CONSENT SEARCHES 462 1. Voluntary consent Schneckloth v. Bustamonte (1973) Officers do not have to tell suspects that they have a right to refuse to give consent. Test: Is consent to search voluntary under the totality of the circumstances? United States v Drayton ct upheld searches of bags and persons made during a bus sweep. Consequences of Refusing to Consent 463 Is refusal to consent to a search suspicious? No A person cannot be penalized for exercising right to refuse to permit a search Necessary to protect exercise of constitutional right Totality of the Circumstances: 465 Six factors from Gonzalez-Basulto 1. Voluntariness of custodial status 2. Presence of coercive police procedures 3. Extent and level of cooperation 4. Defendants awareness of right 5. Defendants education and intelligence 6. Defendants belief that no evidence will be found 2. Third party consent 468 US v. Matlock (1974) Mutual use of the property justifies 3rd party consent Illinois v. Rodriguez (1990) 23

Third party with apparent authority can consent to search. Officers had reasonable belief that friend had authority to consent.

Georgia v. Randolph (2006)Issue: One occupant consents to search, other occupant objects. Express refusal of consent by one occupant prohibits warrantless search . Co-tenants permission does not suffice for a reasonable search 3. Scope of consent Florida v. Jimeno held that scope of consent is determined by a standard of objective reasonableness. Search beyond the scope of consent granted cannot be justified as consent search. Citizen must clarify any ambiguity concerning scope of consent. 4. Withdrawing consent 481 5. Credibility determinations 482

EXCLUISONARY RULE
Requires suppression of evidence obtained in violation of defendant's constitutional rights. Weeks v. US: rule applied to federal courts Wolf v Colorado: applicability of rule to the states. Mapp v. Ohio (1961) 498 Applies rule in Weeks to state court prosecutions ER imperative to preserve judicial integrity Note: Not constitutionally required! No 4A violation occurs when bad evidence is used in court. Some criminals will go free part of the system ER: Arguments Against Ordinary law-abiding citizen would think an officer acting on a hunch should be commended for fine work Defendants go unpunished free to continue criminal activity Judicially created rule more important than good police work Crime has gone up since Mapp v. Ohio ER: Arguments in favor 1. Rule preserves judicial integrity 2. Rule prevents government from profiting from wrong 3. Rule is not costly only excludes evidence which should not have been obtained 4. Rule is necessary to deter police misconduct Alternatives/Supplements to ER 1. Civil damages recovery Hudson v Michigan 507: held that a violation of the knock and announce requirement does not justify exclusion of evidence found in the home. 2. Criminal prosecutions of offending officers 3. Police rulemaking/training

Limitations on ER 510
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1. Good faith Standing United States v. Leon (1984) ( 521 extra material) ER does not apply when officers act in reasonable reliance on a warrant issued by a magistrate which is later found to be unsupported by PC Leon and warrants lacking in PC 522 Leon and overbroad warrants 524 Leon and untrue or omitted statements in the warrant application Massachusetts v. Sheppard (1984) - Bad warrant. Judge had made error so evidence was not suppressed. - LEO not required to disbelieve a judge who has just advised him, by word and by action, that the warrant authorizes him to search as he has requested.

Good Faith Exception and warrantless searches530


Clearly erroneous standard Good faith exception applies as long as reasonable persons could differ about whether the officers conduct was reasonable.

Illinois v. Krull (1987) 530 (reasonable reliance on legislative acts)530 State law authorizing warrantless searches was found to be unconstitutional ER did not apply because it would not search as a deterrent Clerical Errors and reliance on court clerical personnel 531 Arizona v. Evans (1995) Administrative personnel are not law enforcement. Administrative personnel cannot be deterred by ER Good Faith exception applied where error was the result of negligence attenuated from the arrest or search. 533 Herring v. US (2009) It held that a criminal defendant's Fourth Amendment rights are not violated when police mistakes that lead to unlawful searches are 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. Narrow reading: Exception only applies when error made by an officer removed from search and seizure. Broad reading: Exception only applies when officers mistake is reasonable as opposed to grossly negligent or reckless. Good faith where the arresting searching officer is at fault 540

Standing Establishing a ViolationStanding 25

A person must claim that a reasonable expectation of her/his personal privacy or possessory interest was violated.

Rakas v. Illinois (1978) In order to claim protection of 4A, a def must show Personally has expectation of privacy in the place searched AND Expectation is reasonable Automatic standing completely abolished in Salvucci (1980) Cannot complain about the violation of someone elses rights Payner (1980) Minnesota v. Carter (1998) Distinction between Short-term visitors on business Short-term visitors for social purposes Is the business/social distinction always clear?

SELF INCRIMINATION
596-619 642-651 Constitutional Provisions 5A Privilege: No person shall be compelled in any criminal case to be a witness against himself. 5A DUE PROCESS: nor be deprived of life, liberty, or property, without due process of law Why do we have 5th Rights? Protection of the innocent, Cruel Trilemma (self accusation, perjury, contempt), Limiting Perjury, Unreliability of Coerced statements, Preference for Accusatorial system, Need to deter improper police practices, fair stat-individual balance, preservation of official morality, privacy rational, 1st Amend. To claim the 5th need: (1) Compulsion by the State, (2) witness against self, (3) Use in Criminal Case. Scope of Privilege: Criminal prosecution and Civil proceedings (when incriminating statements could be used in a subsequent criminal case) Formal or informal. Detention for treatment Foreign prosecutions If statements not used in criminal prosecution

What is Compulsion: Compulsion involves some kind of penalty or pressure to force a person to give an answer. Any kind of penalty that govt imposes to get a person to speak violates 5th. Contempt power most obvious example State-imposed sanctions Firing public employees without immunity Threat of disbarment 26

Denial of benefits Sentencing Clemency Economic Sanctions are compulsion Lethowitz v Turley (contractors) NY Provision that said if you are a Contractor on public project, you have to answer questions about project and if refused to answer you are barred from getting public K for the next five years.

Griffin Rule615) Ct held that adverse comment to the jury by either the judge or the prosecutor, on the defendants election not to testify constitutes punishment Qualifying communication 643 Hiibel v. Nevada (2004) : To qualify for 5A privilege, communication must be, testimonial, incriminating and compelled. Neither the Fourth nor Fifth Amendment is violated when an individual can be arrested for not providing their name to an officer after the officer asks for it. Colorado v. Connelly (667) due process focus is primarily on police conduct rather than the suspects state of mind.

Invocation of the Privilege: Adverse Inference Choice to remain silent cannot be used against you in court trial or sentencing. Trial judge must inform jury not to use silence as suggestion of guilt. Principle does not apply in civil cases Immunity 645 If a witness is guaranteed that no criminal prosecution having anything to do with the statements will take place, then NO POSSIBILITY OF INCRIMINATION, NO RIGHT TO REFUSE TO TESTIFY, MAY BE PUNISHED FOR CONTEMPT FOR REFUSING. Government Burden with Immunity Once immunity granted, burden is on the government to demonstrate that the evidence is not derived from immunized testimony. Immunity protects only honest statements; perjury is not protected. Waiver 648 Voluntary testimony waives privilege

CONFESSIONS
651-722 Due Process In applying DP the Cts generally focus on three factors: (1) actions of the police; (2) the characteristics of the defendant, and (3) Circumstances surrounding the confession.

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Spano v. New York (1959) :Sct majority went through a totality of circumstances . Foreign-born man of 25.No past history of law violation or official interrogation Only 6 months in high school. Questioned by many men. Questioned for 8 hours. Held: massive overnight interrogation of an indicted D violated DP, when cops ignored Ds repeated requests for his lawyer and used a false friend of Ds to get him to confess under fear of hurting his friend Deception and false promises by the police 662 False documentary evidence 664 Honest promises v false promises665 Threats of physical violence 666 Focus on police misconduct 667 Interrogation of 911 suspects Fifth Amendment limitations of confessions Miranda v. Arizona (1966) Rule: Government may not use statements prompted by questioning under custodial interrogation without specific procedural safeguards. When is Miranda applicable? Informal compulsion exerted by officers during in-custody questioning. Miranda Rationale Custodial interrogation constitutions 5A compulsion. Interrogation techniques Not involuntary under due process clause, but compelled under 5A 5A privilege applies to custodial interrogation Dickerson v. United States (2000)691 Ct held that Miranda being a constitutional decision of the court, may not be in effect overruled by an act of congress and we decline to overrule Miranda ourselves. Exceptions to Miranda Impeachment- Silence issues Doyle v. Ohio(702)The Doyle ct held that after Miranda warnings are given, the due process clause prohibits the government from using the defendants silence against him, even for impeachment purposes. Fruits of confession704 Leads to witnesses 704

Oregon v. Elstad: A suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. Missouri v. Seibert (2004) Second confession after a Miranda-defective confession will be admissible unless Bad faith in not giving warning #1 Confession #2 proceeded directly from confession #1

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Physical evidence derived from Miranda defective confessions: US v. Patane (2004) Patane appealed firearm charges when a gun was found as the result of his un-Mirandized statements to police.Rule of Law. Physical evidence obtained from un-Mirandized voluntary statements is admissible, although the statements, themselves may not be. Emergency exception 719 New York v. Quarles (1984)( ct concluded that overriding considerations of public safety can justify an officers failure to provide Miranda warnings. Waiver of Miranda Rights 743-759 Miranda court stated that Accused MAY waive right to silence and counsel. But only if under all the circumstances the rights are waived, Voluntarily, Knowingly and Intelligently Problem is how do we know if the waiver meets those requirements?? A written, signed waiver is the most obvious

Knowing and voluntary Burbine (1986)743 ct held that 2 requirements must be met before a suspect can be found to have waived his Miranda rights: chk book Tague v. Louisiana: officer could not remember so a valid waiver could not be found simply by the fact that the warnings are given and the suspect confesses. Frankson (7th Cir. 1996) Waiver proven Suspect answered yes when asked if he understood No formal waiver required

Due Process Concerns are still relevant even if a waiver is freely and voluntarily given Recall that police coercion / pressure can still constitute a 5th amendment due process violation Relationship of waiver standards to the test for voluntary confessions. 744 Colorado v Connelly Understanding the Miranda warnings: 745 Suspect must UNDERSTAND rights Deranged/mentally ill Low IQ Extreme stress Language barrier ( U.S v Garibay)745 Standard: whether suspect actually understood Miranda warnings. 29

Conditional Waivers 746 Suspects may place conditions on waiver:I will talk about x but not about yBUT, suspect must not know about every possible consequence of waiver Connecticut v. Barrett

Intelligent Waiver 747 Suspect need not know every consequence of remaining silent.Officers need not explain what statements can/cant be used (such as confessions after a Miranda-defective interrogation). Police do not need to supply a suspect with more information (such as attorney being retained by family member Moran)

Berghuis v. Thompkins (supplement) Two issues: Invocation and Waiver Warnings were given issue was response of suspect Suspect did not Say he wanted to remain silent Say he wanted to talk to police Waiver does not need to be express

Information needed for a intelligent waiver : inadmissibility of a previous confession748: Oregon v Elstad Information needed for a intelligent waiver: efforts of a lawyer to contact the suspect. Moran v. Burbine Waivers after Invocation What if suspect invokes Miranda rights and later confesses? OK as long as police provide a fresh set of warnings (Mosley) 752 Must be a cooling off period Multiple attempts by officers may be problematic

Custodial interrogation requirement 756 Role of Counsel in Waiver issues Should Miranda be read as providing protection of right to counsel independent of decision to waive rights? No (Burbine) The right is that of the SUSPECT Counsel right invoked only after suspect requests it

When is right to counsel invoked? Edwards v. Arizona (p 756 Once right to counsel is invoked, police questioning must cease until counsel is made available. 30

Suspect cannot waive right to counsel after invoking it unless he initiates conversation. Defining initiation 757 Oregon v. Bradshaw (1983) Suspect invoked right to attorney. Then suspect asked, Well, what is going to happen to me now? Officer indicated that they should not be talking. Suspect agreed to polygraph Confession was admissible SUSPECT INITIATED FURTHER CONVERSATION

Gideon v. Wainwright (1962) 6A right to counsel is fundamental and essential to a fair trial. 1. Prosecutors are deemed essential 2. Most defendants who can afford attorney will get one 3. Lawyers are needed to protect procedural and substantive safeguards. Right to free counsel in other cases Argersinger v. Hamlin (1972) 90 days in jail without counsel No imprisonment without knowing and intelligent waiver to right to counsel Scott v. Illinois (1979) Actual imprisonment is required A fine or other non-incarceration sentence does not require counsel Enhanced Sentencing Nichols (1994) Nothing unconstitutional in using a counsel-free conviction for enhancement purposes.

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