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Criminal Procedure Attack Outline
.A The Role of the USSC
.A..1 Supervisory authority : USSC is the reviewing court for all federal courts and will
interpret and review federal law; Congress can change law here
.A..2 Constitutional interpretation and application : USSC decides whether or not a
law or action is constitutional; Congress cannot change here
I. GOVERNMENT ACTION—PROTECTS AGAINST STATE OVERREACHING
II. WAS THERE A SEARCH AND/OR SEIZURE?
II..A SEIZURE?
II..A..1 Person
II..A..1.)a Arrest—taking into custody for the purpose of answering criminal
charges.
II..A..1.)b Detention
II..A..2 Item/Tangible Property—meaningful interference with someone’s possessory interest
( Hicks)
II..B SEARCH?
II..C Was there a reasonable expectation of privacy?
II..C.)a Reasonable expectation
II..C.)b Legitimate expectation of privacy that society is prepared to recognize
( Katz )
II..C.)b.()i the 2 prong Harlan concurrence test :
II..C.)b.()i.()a For a search to occur, (1) the person
must have exhibited an actual expectation of privacy (subjective) and, (2) that expectation is one that society is prepared to recognize as reasonable (objective).
II..C.)b.()ii KYLLO 4 part TEST (if satisfied=search)
II..C.)b.()ii.()a Sense enhancing technology,
II..C.)b.()ii.()b That is not in general public and
II..C.)b.()ii.()c Gives any info regarding the interior of the
home, and
II..C.)b.()ii.()d This info could not have been obtained
without physical intrusion.
II..C.)c Requisite connection to the place search that society recognizes as
reasonable. (STANDING) (Minnesota v. Carter )
II..C.)c.()a Overnight guests can assert a 4th A violation under
Minnesota v. Olson [1990]. Almost all social guests have standing to object to a search.
II..C.)c.()b Possessory or property interest in the area searched or
the item seized (Rakas ) and can’t be fleeting (Rawlings ).
II..C.)d No reasonable expectation of privacy
II..C.)d.()1 Conversations with 3Ps, unreliable ear doctrine ( White )
II..C.)b.()i.()b The “uninvited ear” in Katz vs. the “unreliable ear”
in White
II..C.)d.()2 Pen Registers and Bank Records (Smith; Miller )
II..C.)d.()3 Open Fields ( Oliver )
II..C.)d.()4 Areas within plain view even if it is in curtilage ( Criaolo )
II..C.)d.()4.()a United States v. Dunn (distinction between open fields
and curtilage)
II..C.)d.()4.()a.()i 4 factors that define curtilage :
II..C.)d.()4.()a.()i.()a Area’s proximity to the home
II..C.)d.()4.()a.()i.()b The existence of an enclosure
around the area
II..C.)d.()4.()a.()i.()c The nature of the use to which
the areas is put; and
II..C.)d.()4.()a.()i.()d The precautions taken to
exclude others from the area
II..C.)d.()4.()b Cf: USSC has provided more protection against tactile
examinations than visual observations. ( Bond F 0 E 0officer squeezed and manipulated bag on bus)
II..C.)d.()5 The dog smell of one’s luggage ( Place )
II..C.)d.()6 The dog smell of one’s car ( Caballes )
III IF THERE WAS A SEARCH AND/OR SEIZURE, WAS IT REASONABLE?
III..A PC? There must be concrete facts and circumstances known to the officer that can be
articulated and measured against an objective standard.
III..A.)a Illinois v. Gates [USSC; Rehnquist opinion; 1983]
III..A.)a.()1 Aguilar/Spinelli Test:
III..A.)a.()1.()a2 prongs: veracity prong (credibility and reliability) and
the basis of knowledge prong.
III..A.)a.()1.()bCorroboration can rehabilitate the basis of the
knowledge or veracity
III..A.)a.()2 The revised standard is PC based on the totality of the
circumstances that there is a fair probability that a person or contraband will be present in a particular place at a particular time or that a particular person committed the crime.
III..A..1 Whren v. United States [USSC; Scalia opinion; 1996] (where an officer
has PC justifying a particular intrusion, the fact that the officer may have acted for ulterior reasons is irrelevant; i.e. the objective facts, not the subjective intent of the officer define PC.
III..B WARRANT REQUIRED?
III..C Search of Home—Warrant Required Johnson v. United States [USSC; Jackson opinion;
1948]
III..C.)a Rule: Searches in a home without a warrant are per se
unreasonable due to the sanctity of the home and it is constitutionally preferable to have a neutral and detached magistrate to review the PC.
III..D Public Arrest v. Entering Home
III..A.)a.()1.()c United States v. Watson [USSC; White opinion; 1976]
III..A.)a.()1.()d Rule: Felony arrests can be made without a warrant, as
long as the arrest takes place in public and as long as there is PC to arrest.
III..A.)a.()1.()eRationale: The Court doesn’t want to curtail law enforcement
efforts to “ferret out crime.”
III..A.)a.()1.()f Atwater v. City of Lago Vista [USSC; Souter opinion; 2001]
III..A.)a.()1.()f.()1 Same rule for misdemeanor arrests as felonies.
III..E Arrest in the Home: Payton —Need an arrest warrant to arrest in home
III..F IF THE WARRANT WAS REQUIRED, WAS THE REQUIREMENT MET?
III..F..1 Valid?
III..F..1.)a PC ( Illinois v. Gates)
III..F..1.)b A neutral and detached magistrate must determine PC (Johnson)
III..F..1.)c The warrant must describe with particularity the place to be
searched and the items or persons to be seized. ( Andersen )
III..F..2 Particularity Requirement: The warrant must describe with particularity
the place to be searched and the items to be seized and leave nothing to the discretion of the officers.
III..F..2.)a Is there a bright-line rule for how particular a warrant must be?
III..F..2.)a.()1 No. Particularity is measured on a sliding scale F 0 E 0more complex
the case, less particular vs. a robbery where the victim says my diamond ring, watch, and $10K were stolen, the warrant would need to state all of these specific things. (Warrant couldn’t say “search for items stolen from victim.”
III..F..2.)b Anticipatory warrants are valid so long as there is PC that the
triggering condition will occur and that the occurrence of the triggering condition creates PC. ( United States v. Grubbs [2006]).
III..A.)a.()3.)c.()3 Rationale: The majority disagrees with the C of A’s
reading of Chimel and says that the possibility of discovery of evidence or officer safety weren’t the only reasons supporting the authority for a full search incident to a lawful arrest.
III..A.)a.()3.)d What if the suspect just got a citation, no possibility of jail time?
Robinson isn’t extended to this situation. ( Knowles v. Iowa [1998])
III..A.)a.()3.)e New York v. Belton [USSC; Stewart opinion; 1981]
III..A.)a.()3.)e.()1 Holding: Officers were permitted to search the pockets of
this jacket because the articles were within the area of the automobile that the arrestee could reach in order to grab a weapon or evidentiary item.
III..A.)a.()3.)e.()2 Police officers can’t search the trunk, under this holding,
but can search any containers whether open or closed in the car. But, this search must be contemporaneous with the arrest. (Here, 20 minutes was contemporaneous.)
III..A.)a.()3.)f Thornton v. United States [2004]
III..A.)a.()3.)f.()1 Even though the officer had approached him after he
had gotten out of his car and had searched the car after he had been handcuffed and placed in a police car, the search was deemed reasonable under Belton.
III..A.)a.()3.)g Washington v. Chrisman [1982]
III..A.)a.()3.)g.()1 Held: an officer could enter the dormitory room of an
arrested student without a warrant because “it is not ‘unreasonable’ under the 4th A for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest.”
III..A.)a.()4 Exigent Circumstances
III..A.)a.()4.)a Need to identify the exigency with precision and immediacy. ( Hayden )
III..A.)a.()4.)a.()1 Warden, Maryland Penitentiary v. Hayden [USSC;
Brennan opinion; 1967]
III..A.)a.()4.)a.()1.()a Rule : If the officers are acting on a reasonable
belief that the suspect will escape or evidence will be destroyed, they may enter the house without a warrant under the exigency. Then, while they are searching for the suspect, any evidence found in plain view is admissible. But, the officers are not allowed to search the whole house generally.
III..A.)a.()4.)a.()2 *Pursuit needs to be immediate to fall under the exigent
circumstance of hot pursuit.
III..A.)a.()4.)b Minnesota v. Olson [1990]: The gravity of the crime and the likelihood
that the suspect is armed must be considered as factors in assessing the urgency of the situation.
III..A.)a.()4.)b.()1 Need PC to believe that there is a:
III..A.)a.()4.)b.()1.()a Imminent destruction of evidence
III..A.)a.()4.)b.()1.()b The need to prevent a suspect’s escape
III..A.)a.()4.)b.()1.()c Risk of harm to police or others inside or outside
the dwelling
III..A.)a.()4.)b.()2 Need either hot pursuit or one of the three
factors above to have an exigency.
III..A.)a.()4.)c Warrantless entry into a dwelling may not be permissible even
under exigent circumstances where the suspect is sought for minor crimes.
III..F..3.)a.()3.()b Welsh v. Wisconsin [1984]
III..F..3.)a.()3.()b.()a The Court refused to sanction the circumvention
of the warrant process under those circumstances for drunk driving that was a minor crime under Wisconsin law.
III..F..3.)a.()3.()c Cf. People v. Thawson [CA SC;
2006] F 0 E 0DUI=misdemeanor with jail time, so exigency did exist here.
III..A.)a.()4.)d Vale v. Louisiana [USSC; Stewart opinion; 1970]
III..F..3.)a.()3.()a.()ii Why wasn’t this an exigent circumstance?
III..F..3.)a.()3.()a.()ii.()a The officers were able to procure two
warrants for Vale’s arrest. There is no reason that they couldn’t have gotten a search warrant as well.
III..F..3.)a.()3.()a.()ii.()b The dissent disagrees though, and feels
that the search was exigent since other people could destroy the evidence. For example, his drug trade partner already swallowed some of the drugs. Also, his mother and brother showed up.
III..F..3.)a.()3.()a.()ii.()c However, majority argues no exigency
because Vale couldn’t have destroyed the evidence himself since he was already in custody.
III..F..3.)a.()3.()a.()iii Are the cops allowed to detain people in order to secure
a warrant?
III..F..3.)a.()3.()a.()iii.()a Yes. Illinois v. McArthur F 0 E 0The officers may
seize the premises and not let anyone in or out, and then get the warrant to search.
III..A.)a.()4.)e Community Caretaking Function of the Police
III..F..3.)b.()1.()b Mincey v. Arizona [1978]
III..F..3.)b.()1.()b.()a The Court rejected the argument that the
exception justified an extensive four-day warrantless search of a homicide scene. Not questioning the right of police to make warrantless entries and searches when they reasonably believe a person inside is in need of immediate aid ( dire medical treatment) or when they come upon a homicide scene and promptly survey the immediate area for victims or the perpetrator, the Court concluded that the search far exceeded the necessities of the moment.
III..F..3.)b.()1.()b.()b Court refused to create a “murder scene
exception” that allows a general search every time a murder happens. When the community caretaking activities morph into an investigative search, there must be a search warrant.
III..A.)a.()5 Automobile Exception
III..F..2.)a.()2 Need PC to believe that evidence is contained therein and if so, can
search the entire car, including containers, as long as there is PC to believe items related to crime will be found in the place to be searched. ( Chambers; Acevedo )
III..F..2.)a.()2.()1 Carroll v. United States [USSC; 1925] (bootleg case…
first to give automobile exception F 0 E 0no warrant is needed due to mobility of cars and cars have a diminished expectation of privacy due to regulations and licensing, etc.)
III..F..2.)a.()2.()2 Chambers v. Maroney [USSC; White opinion; 1970]
III..F..2.)a.()2.()2.()a Held: Warrantless search of a car that had been
stopped on the road, but was searched subsequently at the police station after it had been seized and its occupants taken into custody was constitutional.
III..F..2.)a.()2.()2.()b Rationale: Since the police had PC to believe the
car contained evidence of a recent robbery, and thus could have lawfully searched it on the road, it was constitutionally permissible to conduct the delayed search as well.
III..F..2.)a.()2.()3 Texas v. White [USSC; per curiam opinion; 1975] F 0 E 0If
police have right to search on the roadway, then can search at the station.
III..F..2.)a.()2.()3.()a Dissent: Chambers didn’t hold what the majority
says it did F 0 E 0instead it held that the police officers with PC to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant when it was reasonable to take the car to the station house in the first place. (Here, the arrest took place at 1:30 p.m. ….no indication that an immediate search would have been either impractical or unsafe for the arresting officers.)
III..F..2.)a.()3 Vehicle is broadly construed—must be readily mobile. ( Carney )
III..F..3.)b.()4.()b Test:
III..A.)a.()6.)b Booking Persons: If lawful arrest, prospective incarceration and
standard procedures can inventory at stationhouse and can search any container or article in his possession( Lafayette )
III..A.)a.()6.)c Containers too if inventory search of the person or automobile would
otherwise be valid and according some kind of standardized procedures. ( Bertine , Florida v. Wells )
III..A.)a.()6.)c.()1 Counterargument: the search of the container in
Lafayette occurred at the stationhouse during booking and carried with it the rationales of booking procedures. (The same rationales don’t apply here.)
III..A.)a.()7 Consent Searches
III..A.)a.()7.)a Voluntary: Determined by the totality of the circumstances
( Bustamonte )
III..A.)a.()7.)b Do not have to inform the person that they do not have to give their
consent ( Bustamonte )
III..A.)a.()7.)b.()1 Schneckloth v. Bustamonte [USSC; Stewart opinion;
1973]
III..F..3.)b.()4.()b.()a.()iii Rule: Looking at the totality of the
circumstance, if consent for the car search was given voluntarily, then 4th A protection is waived.
III..F..3.)b.()4.()b.()a.()iv It is permissible to have ignorant consent,
but it cannot be gained by coercion.
III..F..3.)b.()4.()b.()a.()v Coercion is tested by the totality of the
circumstances and these factors:
III..F..3.)b.()4.()b.()a.()v.()i How many police officers were
there? (Large # tends more towards coercion.)
III..F..3.)b.()4.()b.()a.()v.()ii Did the police officer persist and
request consent after an initial refusal?
III..F..3.)b.()4.()b.()a.()v.()iii The age, education, emotional
state, and ethnicity of the suspect.
III..F..3.)b.()4.()b.()a.()v.()iv Was there a show of authority?
(Such as a gun, etc. that basically coerced the suspect to consent.)
III..F..3.)b.()4.()b.()a.()v.()v Knowledge of the right to refuse is
a factor, but is not by itself determinative.
III..A.)a.()7.)c Do not have to tell a person when they are free to go ( Robinette ) and
can seek consent thereafter. Also post-arrest consent may be considered voluntary based on the totality of the consequences. ( Watson )
III..A.)a.()7.)d Scope : Is defined by objective reasonableness test. If a person says,
“You may search the kitchen.” Then, they only consenting to a search of the kitchen, and anything beyond that would be unreasonable. ( Florida v. Jimeno [1991])
III..A.)a.()7.)e If by 3P must have common authority, joint access, and control of the
space ( Matlock ) or apparent authority—reasonable belief of authority to consent ( Rodriguez )
III..A.)a.()7.)f No consent if co-occupant who is present refuses consent ( Georgia v.
Randolph )
III..A.)a.()8 Plain View (Plain View isn’t an exception to the warrant requirement, but
functions as a justification for a warrantless seizure .)
III..F..3.)a.()4 The three requirements for a lawful plain view seizure are that:
III..F..3.)a.()4.()1 The officer’s original intrusion is lawful,
III..F..3.)a.()4.()2 The item is observed while the officer is confining
her activities to the permissible scope of that intrusion (sometimes referred to as a lawful right of access to the object itself), and
III..F..3.)a.()4.()3 It is immediately apparent that the item is
contraband or evidence of crime , without the necessity for any further examination or search.
III..F..3.)a.()5 Prior justification for the intrusion ( Horton did away with the
inadvertence requirement because it added no significant privay protection beyond the other requirements for plain view seizure and because it required unworkable
judicial inquiries into the subjective state of mind of the officers. So, after Horton , the fact that agents anticipated finding guns above and beyondjewerly listed in the warrant, does not violate the PVD.)
III..F..3.)a.()6 Immediately apparent that it is incriminating evidence—PC required
( Hicks F 0 E 0had to pick up the stereo to get the serial numbers…not readily apparent that’s its contraband)
IV WAS IT A SEARCH OR SEIZURE THAT REQUIRES LESS THAN PC?
III..F..4 STOPS
III..A.)b Was there a Stop/Detention?
III..A.)b.)a General Test: Would a reasonable person believe he is not free to leave
because his movement is restrained by physical force or a show of authority to which the suspect actually submitted? ( Mendenhall; Hodari D. )
III..A.)b.)a.()1 The actual belief of the subject that is (or is not) being detained
is not determinative.
III..A.)b.)a.()2 The actual, but unstated intiention of the officers to detain is
irrelevant to the inquiry.
III..A.)b.)b Captive Audience Test: Would a reasonable person feel free to decline
the officer’s request for consent or otherwise terminate the encounter? ( Bostick ) [This test is broader and can be applied to more situations than the Mendenhall test because the Mendenhall test doesn’t apply to situations when freedom of movement is determined by a voluntary choice or circumstance.]
III..A.)c Was there RS to Stop that Suspect?
III..A.)c.)a Police must have RS that criminal activity is afoot, based on articulable
facts. ( Terry )
III..A.)c.)a.()1 RS is more than an inchoate hunch, but less than PC and based
on the totality of the circumstances. ( Terry, Alabama v. White )
III..A.)c.)a.()1.()a Terry v. Ohio [USSC; Warren opinion; 1968]
III..A.)c.)a.()1.()a.()i Rule: The fact and circumstances of
the situation must lead a reasonable prudent person to believe that (1) criminal activity is afoot, and (2) the suspect is armed and dangerous.
III..A.)c.)a.()1.()a.()ii Holding: “A stop and frisk is
permitted under the 4th A where there is reasonable belief [RS] that criminal activity is afoot and there is RS that the person is armed and dangerous.”
III..A.)c.)a.()1.()a.()iii Majority: Stopping someone is in fact a
seizure and a frisk is in fact a search. The 4th A is definitely implicated, but the Court was balancing two very important and competing interests: the safety and protection from harassment by police during the Civil Rights Movement and the obligation of the police to conduct investigations.
III..A.)c.)a.()1.()a.()iv RS is considerably less than proof than a
preponderance of the evidence, but considerably more than an inchoate and unparticularized suspicion or hunch.
III..A.)c.)a.()1.()b Sibron v. New York [USSC; 1968] In the Court’s
view, mere association with known narcotics addicts did not give rise to a reasonable fear of life or limb.” As a result, the Court held that is was unconstitutional for the officer to stop and frisk Sibron.
III..A.)c.)a.()2 Presence in a high crime area is not enough to create RS, but
may be a factor along with flight from police. ( Wardlow )
III..A.)c.)a.()2.()a Does a refusal to cooperate furnish RS?
III..A.)c.)a.()2.()a.()i Florida v. Royer : No. “When an officer,
without RS or PC, approaches an individual he/she has a right to ignore the police and go about his business.”
III..A.)c.)a.()3 Anonymous tips can, but generally do not, provide RS—it
depends on the quantity and quality of evidence provided ( Alabama v. White; Florida v. J.L. )
III..A.)c.)a.()3.()a Alabama v. White [USSC; White opinion; 1990]
)a.()1 Requires reasonable grounds for suspecting the search will reveal a
violation of school rules or law by a student.
)a.()2 Lower standard applies to school officials, not to the police.
)b Did the search exceed the permissible scope?
)b.()1 The search must be reasonably related to the objectives of the search
AND
)b.()2 The search may not be excessively intrusive in light of the age and sex
of the student and nature of the infraction.
.2 Drug Testing
.2.)a Suspicionless testing in the safety industry is allowed. ( Skinner F 0 E 0RR)
.2.)b The risk to the public must be real and substantial. ( Chandler F 0 E 0Canidates)
.2.)b.()1 No special need when the primary purpose is law enforcement
and the labeling as a “special need” is to get around PC or RS ( Ferguson F 0 E 0pregnant drug addicts)
.2.)c Testing of employees working for customs who sought promotion or transfer to
positions involving drug interdiction, firearms or classified material is permissible. ( Von Raab )
.2.)d Testing school athletes is allowed. (Vernonia )
.2.)e Testing for non-athletic extracurricular activities is allowed ( Earls )
.D Checkpoints
.1 Brown v. Texas [1979]
.1.)a *This was not a check point case.
.1.)b Facts: Officers stopped an individual in a high-crime area of El Paso because
he looked suspicious and they wanted to ascertain his identity.
.1.)c The Court ruled the stop unconstitutional, and gave a three prong
test:
.1.)d The gravity of the public concern served by the seizure;
.1.)e The degree to which the seizure advances the public interest;
.1.)f The severity of the interference with individual liberty.
.1.)g This test is the guide for the balancing in the checkpoint and drug
cases.
.2 Minimally intrusive sobriety checkpoints are allowed because the calamity of drunk
driving is more important to deal with than the minimal intrusion in individual’s privacy. ( Sitz )
.2.()1 Evenhandedness was ensured because the locations of the
checkpoints were chosen pursuant to written guidelines and the police were directed to stop every approaching vehicle—the officers themselves did not decide whom to stop.
.2.)a Delaware v. Prouse [1979] : Held: suspicionless discretionary spot checks of
motorists to inspect license and registration violated the 4th A.
.3 Checkpoints established for general crime control purposes are not allowed--drug
trafficking checkpoint stuck down. (Much more investigative) ( Edmond )
.2.()2 Primary purpose test does not refer to every law enforcement objective. It
does not include situations where the objective is to ask the car’s occupants about “others” who have committed offenses. ( Lidster )
.4 At the Border:
.4.)a Fixed checkpoints where there is no discretion and no surprise are allowed for
checking for illegal immigrant ( Martinez-Fuerte)
.4.)a.()1 Must apply traditional car search/seizure rules to roving border
patrols. ( Brignoni-Ponce )
.4.)a.()1.()a United States v. Brignoni-Ponce [1975]
.4.)a.()1.()b Held: Vehicles may be stopped by roving patrols
near the border and occupants briefly questioned about their immigration status only upon RS that the vehicle contains illegal aliens.
.4.)a.()1.()c Thus, absent RS roving border patrols are not ok,
especially if, like here, it was conducted at night with surprise, and too much police officer discretion.
.4.)a.()2 Routine searches at the border are constitutional. ( Ramsey )
.4.)a.()3 Gov’t’s authority to conduct suspicionless searches at the
border includes the authority to remove, disassemble and reassemble the fuel tank. ( Flores-Montano )
V. CONFESSIONS
***** The 5th A prohibits compelled self-incriminating testimonial statements. *The 6th A provides right to counsel once the adversarial proceedings begin.
.A Was there a Miranda violation?
.A..1 Miranda v. Arizona [USSC; Warren opinion; 1966]
.A..1.)a Holding: Yes, the 5th A applies to custodial interrogations because
there is a presumption of coercion in custodial interrogations. Further, “[t]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the F 0 4 4unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
.A..1.)a.()1 If the suspect exercises his right to silence, interrogation must
immediately cease; if he requests an attorney, interrogation must cease until one is present.
.A..2 New York v. Quarles [USSC; Rehnquist opinion; 1984]
.A..2.)a Rule: There is a public safety exception to Miranda and so when there
is a risk to public or officer safety and the limited questioning only involves protection of this safety, there is an exception and Miranda rights don’t need to be read right away.
.A..3 Dickerson v. United States [USSC; Rehnquist opinion; 2000]
.A..3.)a Rule: Treating it as a rule of constitutional dimension, Congress
had no power to overrule Miranda in §3501.
.A..3.)b Holding: Despite predictions to the contrary, the Court declined the
invitation to overrule the controversial 1966 Miranda decision.
.A..3.)c But is Miranda a constitutional right?
.A..3.)c.()1 The Court never says this. It only says that Miranda is a
“constitutional decision,” has “constitutional origins,” and “constitutional underpinnings.”
.A..3.)c.()2 Because the Court won’t say it’s a constitutional right, but at
the same time won’t allow Congress to overrule it, the Court has basically created a new realm of constitutional law outside of their supervisory power and outside their constitutional interpretation and application power.
.A..4 Chavez v. Martinez [2003] : The Court took a narrow view of the doctrine when it held
there is no Miranda violation unless the gov’t seeks to introduce the statement at a criminal trial.
.A..5 Was there a custodial interrogation?
.A..3.)c.()3 Custody?
.A..3.)c.()3.()1 A person is in custody when: his/her freedom of action is
curtailed to such a degree as associated with a formal arrest. ( Berkemer ) (police dominated environment)
.A..3.)c.()3.()1.()a Reasonable person perspective used to
determine whether a person is in custody under Miranda ( Berkemer , Yarborough F 0 E 0age doesn’t come into the reasonable person standard though.)
.A..3.)c.()3.()1.()b It does not depend on whether the officer
suspects the individual of a crime and intends to take him into custody, unless that intention is communicated to the suspect. (Stansbury )
.A..3.)c.()3.()2 A person is not in custody when:
.A..3.)c.()3.()2.()a Subjected to roadside questioning akin to a traffic
stop. ( Berkemer )
.A..3.)c.()3.()2.()b Brief, public stop with general on the scene
questioning as to facts surrounding a crime is not custodial.
.A..3.)c.()3.()3.()1.()a The degree to which the interrogators
treated the second round as continuous with the first.
.A..3.)c.()3.()3.()1.()b The completeness and details of the
questions and answers in the first round of interrogation.
.A..3.)c.()3.()3.()1.()c The overlapping content of the two
statements.
.A..3.)c.()3.()3.()1.()d The timing and setting of the first and
second interrogations.
.A..3.)c.()3.()3.()1.()e The continuity of police personnel.
.A..3.)c.()3.()4 Kennedy: Subjective—Deliberate Violations ( Elstad governs
unless dealing with a deliberate situation)
.A..3.)c.()4.()1.()c Intentional effort to circumvent Miranda by using
question-first method
.A..3.)c.()4.()1.()d 2 confessions substantively related rather than about
distinct topics
.A..3.)c.()4.()1.()e Curative measures to ensure that the suspect
understood the rights and waiver of Miranda (substantial break in time, or what you’ve just said can’t be used against you)
.A..3.)c.()3.()5 Note: The inquiry applies to intentional and unintentional two-
stage interrogations. Justice Kennedy would only bar the second statement if the technique was intentional.
.A..3.)c.()3.()6 Dissent:
.A..3.)c.()3.()6.()1 Keep Elstad and look to whether the statement is
involuntarily given.
.A..9 Did the police honor the invocation of rights?
.A..3.)c.()4.()2 Suspect’s silence invokes the right and police may not badger
.A..3.)c.()4.()3 Police can resume questioning after a suspect invokes his right
to remain silent only if his rights are scrupulously honored—apply Mosley factors:
.A..3.)c.()4.()3.()1 Duration of cessation: ( Mosley guide; 2 hours); should be
significant
.A..3.)c.()4.()3.()2 Re-read rights to suspect (Re-Mirandized)
.A..3.)c.()4.()3.()3 Different officer
.A..3.)c.()4.()3.()4 Different location
.A..3.)c.()4.()3.()5 Different subject matter (different and unrelated crime)
.A..10 Right to an Attorney
.A..10.)a Once a suspect has invoked his right to counsel, interrogation must
cease until the attorney arrives or until the suspect re—initiates conversation. (Edwards )
.A..6.)b.()c What constitutes initiation of further communications by the
suspect?
.A..6.)b.()c.()a Oregon v. Bradshaw [1983]: “What’s going to
happen to me?” counted as re-initiation, but asking for water, access to the phone wouldn’t count.
.A..6.)b.()d The fact that the suspect has consulted with counsel after
invoking his rights does not mean that the official can reinitiate the interrogation. ( Minnick )
.A..6.)b.()e Edwards-Minnick rule :
.A..6.)b.()e.()a Once a person in custody requests counsel,
it is as if a protective shield surrounds him or her, and the suspect may not be questioned about any crime unless the suspect’s attorney is present and a valid waiver is obtained or unless the suspect initiates further communication, exchanges, or conversations with the police and a valid (knowing, intelligent, and voluntary) waiver was obtained.
.A..6.)b.()f No duty to inform a suspect that s/he has an attorney en route
(police cannot make affirmative misrepresentation to a suspect—compare to withholding info) ( Burbine )
.A..10.)b The constraint against further interrogation once the right to counsel is
invoked applies even if the second interrogation would concern an offense unrelated the subject of the initial arrest. ( Roberson.)
.A..10.)c If a suspect ambiguously or equivocally asserts his Miranda right to
counsel, the police may ignore the remark and continue the interrogation.
.A..10.)c.()1 Test: If the suspect’s reference to an attorney is ambiguous or
equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the interrogator may ignore the reference and proceed with the questioning. ( Davis F 0 E 0”Maybe I should talk to a lawyer” wasn’t a request for counsel.)
.A..10.)c.()2 No duty to ask clarifying questions, but is good police practice.
( Davis )
.B Was there a substantive due process violation?
.C Brown v. Mississippi [USSC; 1936]
.D The rationales for prohibiting involuntary confessions is that there is a heightened risk of
false confessions in these situations, the police should obey the laws while enforcing them, and our system is an accusatorial system rather than an inquisitorial system.
.E Unlike Miranda , the fruit of the poisonous tree applies to involuntary confessions and
involuntary confessions can’t be used to impeach a F 0 4 4on the stand.
.F Coercive interrogations violate the due process clause. ( Ashcraft F 0 E 036 hours of
unrelenting interrogation is coercive.)
.G Apply totality of circumstances test (and see what the suspect’s peculiar characteristics
were and the characteristics of the interrogation were) to see if the facts suggest coercion [police misconduct]. ( Spano , Mincey F 0 E 0asked questions while F 0 4 4was in ICU=coercive)
.G.)a What facts lead the Court to conclude that this was an involuntary confession?
.G.)a.()1 Spano was foreign.
.G.)a.()2 He was young.
.G.)a.()3 He only had an 8th^ grade education.
.G.)a.()4 He had emotional instability.
.G.)a.()5 Interrogation took 8 hours
.G.)a.()6 Interrogation happened at night
.G.)a.()7 His statement wasn’t a narrative, but was a response to leading
questions by the prosecutor.
.G.)a.()8 Bruno’s false friends tactic.
.G.)a.()9 He wasn’t allowed to see his attorney.
.G.)b Need coercive conduct by the State. ( Connelly F 0 E 0new law, before totality of the
circumstances even applies.)
.G.)c Police are not obligated to treat mentally impaired person differently unless
police knew or should have known of the impairment. ( Connelly )
.H Was there a 6th A right to have counsel present?
.H..1 The 6th A provides that “the accused shall enjoy the right to have the assistance of
counsel for his defense.”
.H..2 Every person is entitled to a lawyer and one must be appointed for those who are
indigent (applies in federal and state courts). It is fundamental to a fair trial to have counsel. ( Johnson v. Zerbst and Gideon v. Wainwright ).
.A..3.)c.()3.()3.()2 Can waive the right to an attorney though as long as it is
knowingly, intelligently, and voluntarily in the opinion of the court. ( Faretta v. California)
.H..3 Counsel must be appointed when the penalty of imprisonment is given, not just the
mere possibility of it. ( Scott F 0 E 0still the federal rule); uncounseled suspended sentences are unconstitutional.
.H..4 In order to prove inadequate assistance of counsel, must meet two prong Strickland
test.
.H..4.)a Two prong test: F 0 4 4must show (1) that his attorney’s performance was
deficient, when measured against an objective standard of reasonableness; and (2) that the F 0 4 4was prejudiced in the sense that there was a reasonable probability that,
VI..A..4.)c.()c Majority: second statement is admissible because the
second statement was made voluntarily and not as a product of coercion. Nothing about giving the first statement leads the second to be involuntary (rejects the “Cat out of the Bag” argument.)
VI..A..4.)c.()d Wong Sun requires that a Constitutional violation for the
F of PT to apply and so Wong Sun doesn’t apply to this case because a violation of Miranda is not a violation of the Constitution.
VI..A..4.)c.()e But, didn’t the Court say that the un Mirandized
statement is presumptively coerced? The Court makes a distinction between actual coercion and presumptive coercion….you must show actual coercion to suppress the second statement.
VI..A..4.)d United States v. Patane [USSC; Thomas opinion; 2004]
VI..A..4.)d.()a Rule: The ER doesn’t apply to physical fruits of a
voluntary statement in violation of Miranda because the 5th A only protects against compelled self-incrimination, not voluntary incrimination.
VI..A..4.)d.()b Miranda violation occurs when the statement is admitted
at trial. (Goes against Miranda ’s general premise.) So, physical fruits are admissible.
VI..A..5 Exceptions
VI..A..5.)a Independent Source
VI..A..5.)a.()1 When there is an illegal act that leads to evidence, but there
are also legal acts that leads to evidence and the illegality hasn’t interfered with the gaining of evidence, then the latter evidence is admissible.
VI..A..5.)a.()2 The decision to seek the warrant and the warrant itself must
have come from an independent source. ( Silverthorne )
VI..A..5.)a.()2.()a Silverthorne Lumber Co. v. United States [USSC;
Holmes opinion; 1920]
VI..A..5.)a.()2.()a.()i Rule: If knowledge of facts is gained from
an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.
VI..A..5.)a.()3 Test for no independent source ( Murray ):
VI..A..5.)a.()3.()a The decision to seek the warrant was prompted
by the illegality OR
VI..A..5.)a.()3.()b Information from the illegality was presented to
the magistrate and the information effected his/her decision.
VI..A..5.)a.()3.()c If the officer uses tainted evidence to show the
magistrate that he has PC, but the magistrate isn’t affected, then it is still an Independent Source.
VI..A..5.)b Inevitable Discovery
VI..A..5.)b.()1 Even if the evidence in question is found to have been the fruit
of the poisonous tree—evidence that can be traced directly back to the initial illegality and for which there is no Independent Source—suppression can nonetheless be avoided if the prosecution establishes that the evidence would have ultimately been discovered anyway by lawful means.
VI..A..5.)b.()2 If the police would have inevitably discovered the evidence (in
this case, by proceeding with the planned grid-search of the area) the evidence will be admissible. ( Nix ); lately courts have argued this to be the case in inventory searches too
VI..A..5.)c Attenuation
VI..A..5.)c.()1 Evidence that is secured as a result of illegality is admissible if
the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint. (Wong Sun )
VI..A..5.)c.()1.()a Evidence obtained as a result of a valid search
warrant, but procured after failure to knock and announce is not
connected to the 4th A violation and therefore admissible. ( Hudson v. Michigan )
VI..A..5.)c.()1.()b Where the police have PC to arrest a suspect, the
exclusionary rule does not bar the State’s use of a statement made by a F 0 4 4outside of his home, even if the statement is made after a Payton violation, because that statement is not the product of the unconstitutional entry. ( New York v. Harris)
VI..A..5.)c.()2 Factors: ( Brown )
VI..A..5.)c.()2.()i Temporal proximity
VI..A..5.)c.()2.()ii Intervening events
VI..A..5.)c.()2.()iii Flagrancy of the violation
VI..A..5.)c.()2.()iv Nature of the derivative evidence
( Ceccolini )
VI..A..5.)c.()2.()iv.()a Physical or verbal evidence?
VI..A..5.)c.()2.()iv.()b Rationale: Live witnesses
should not be discouraged from coming forward based on their own free will; so the constitutional violation must be really closely linked to the discovery of the witness for the Court to allow the witness’s testimony to be excluded and to hold that attenuation wasn’t present.
VI..A..5.)c.()3 Miranda
VI..A..5.)c.()3.()a A Miranda warning does not automatically
dissipate the taint of a 4th A violation. It is not sufficient alone and per se to show an act of free will that will dissipate the taint, but is one factor. ( Brown )
VI..A..5.)d Good Faith Exception
VI..A..5.)d.()1 Evidence does not have to be excluded if the police have a
facially valid warrant and have acted in good faith based on a reasonable well- trained police officer standard. (Leon ; Sheppard )
VI..A..5.)d.()1.()a Key is the reliance on the magistrate.
VI..A..5.)d.()2 When the good faith exception does not apply:
VI..A..5.)d.()2.()a When officers misled the magistrate with
information that they knew was false or would have known was false if they had not recklessly disregarded the truth.
VI..A..5.)d.()2.()b When a magistrate was has wholly abandoned
his/her neutral and detached role.
VI..A..5.)d.()2.()c When it is entirely unreasonable for officers to
have believed that PC existed.
VI..A..5.)d.()2.()d When a warrant is so facially deficient that it is
unreasonable for officers to have resumed that it was valid.
VI..A..5.)d.()2.()e When it is a warrantless search.
VI..A..5.)d.()3 The Good Faith exception has been extended in two situations:
VI..A..5.)d.()3.()a Illinois v. Krull [1987]: searches taken place under
statutory authority that were later deemed unreasonable, but there was good faith reliance on the statute and the Court found that was reasonable.
VI..A..5.)d.()3.()b Arizona v. Evans [1995]: search was reasonable
on erroneous computer records; a reasonable police officer would rely on the computer records and that the good faith exception applies.
