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Criminal Procedure: Searches & Seizures (Parry 2006), Study notes of Law

Trinity CollegeLaw

A comprehensive outline of criminal procedure, focusing on key concepts such as consent searches, probable cause, execution of warrants, exigent circumstances, plain view, and search incident to arrest. It delves into landmark supreme court cases, including schneckloth v. Bustamonte, brinegar v. Us, ybarra v. Illinois, maryland v. Pringle, davenpeck v. Alford, graham v. Connor, michigan v. Summers, muehler v. Mena, mincey v. Arizona, welsh v. Wisconsin, and knowles v. Iowa, providing a detailed analysis of their legal principles and implications. Particularly valuable for its clear explanations of the exceptions to the warrant requirement and the evolving standards of reasonableness in search and seizure cases.

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Criminal Procedure
Exam.
- a couple of fact patterns and need to make arguments
- look for ir”A”c answer – care about analysis of an incomplete fact pattern
oneed a conclusion, unless
- push the pros and cons to the limit to get points
- looking to see how you come up with arguments for and against the particular question
- issues of policy, philosophy, history, etc. are good, but looking for arguments
- looking for arguments, do not give doctrinal history in place of arguments/analysis
- can say that under certain circumstances
-show your work, don’t say here is the rule, and the evidence gets suppressed – show the why
- “on the one hand, on the other hand” is a good back and forth
- 2 ways to get a good grade :
oone is to identify every single issue and say something about each
oother way is to identify the biggest issues and go deep on them
ogiven the choice, go deep on something, but look around and see if something else there
oonly get points, don’t take away for bad stuff
ohigh 40s to low 50s are usually A’s (out of 100)
The Fourth Amendment..........................................................................................................................22
Katz v. US (1967) – overturns Olmstead – 4th protects people not places.........................................23
Informants...........................................................................................................................................25
Consent Searches.................................................................................................................................31
Probable Cause....................................................................................................................................32
Warrant................................................................................................................................................33
Search Execution – Warrant or not.....................................................................................................33
Warrant Exceptions.............................................................................................................................38
Exigent Circumstances....................................................................................................................38
Plain View.......................................................................................................................................40
Automobiles....................................................................................................................................41
The Luggage Mess..........................................................................................................................42
Arrests.............................................................................................................................................43
Searches Incident to Arrest..............................................................................................................45
Terry v. Ohio (1968)...........................................................................................................................49
Roadblocks and Border Searches........................................................................................................55
Roadblocks......................................................................................................................................55
Standing...............................................................................................................................................61
Exclusionary Rule...............................................................................................................................63
Exceptions to Exclusionary Rule....................................................................................................64
Due Process.............................................................................................................................................68
Confessions.....................................................................................................................................74
The Fifth Amendment.............................................................................................................................76
Miranda v. Ariz. (1966)...................................................................................................................76
Watering Down Miranda.................................................................................................................83
Miranda and the Fruits of the Poisonous Tree Doctrine.................................................................86
The Sixth Amendment.............................................................................................................................91
Chris Parta 1 Criminal Procedure Outline – Parry 2006
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Download Criminal Procedure: Searches & Seizures (Parry 2006) and more Study notes Law in PDF only on Docsity!

Criminal Procedure

Exam.

  • a couple of fact patterns and need to make arguments
  • look for ir”A”c answer – care about analysis of an incomplete fact pattern o need a conclusion, unless
  • push the pros and cons to the limit to get points
  • looking to see how you come up with arguments for and against the particular question
  • issues of policy, philosophy, history, etc. are good, but looking for arguments
  • looking for arguments, do not give doctrinal history in place of arguments/analysis
  • can say that under certain circumstances - show your work, don’t say here is the rule, and the evidence gets suppressed – show the why
  • “on the one hand, on the other hand” is a good back and forth
  • 2 ways to get a good grade: o one is to identify every single issue and say something about each o other way is to identify the biggest issues and go deep on them o given the choice, go deep on something, but look around and see if something else there o only get points, don’t take away for bad stuff o high 40s to low 50s are usually A’s (out of 100) The Fourth Amendment.......................................................................................................................... 22 Katz v. US (1967) – overturns Olmstead – 4th protects people not places......................................... 23 Informants........................................................................................................................................... 25 Consent Searches................................................................................................................................. 31 Probable Cause.................................................................................................................................... 32 Warrant................................................................................................................................................ 33 Search Execution – Warrant or not..................................................................................................... 33 Warrant Exceptions............................................................................................................................. 38 Exigent Circumstances.................................................................................................................... 38 Plain View....................................................................................................................................... 40 Automobiles.................................................................................................................................... 41 The Luggage Mess.......................................................................................................................... 42 Arrests............................................................................................................................................. 43 Searches Incident to Arrest.............................................................................................................. 45 Terry v. Ohio (1968)........................................................................................................................... 49 Roadblocks and Border Searches........................................................................................................ 55 Roadblocks...................................................................................................................................... 55 Standing............................................................................................................................................... 61 Exclusionary Rule............................................................................................................................... 63 Exceptions to Exclusionary Rule.................................................................................................... 64 Due Process............................................................................................................................................. 68 Confessions..................................................................................................................................... 74 The Fifth Amendment............................................................................................................................. 76 Miranda v. Ariz. (1966)................................................................................................................... 76 Watering Down Miranda................................................................................................................. 83 Miranda and the Fruits of the Poisonous Tree Doctrine................................................................. 86 The Sixth Amendment............................................................................................................................. 91

Criminal Procedure Outline Fourth analysis  Is there a search?  Katz – Reasonable expectation of privacy  Houghton – 1st historical 1789. 2nd traditional standards of reasonableness  Kyllo – viewed as illegal search in 1789 – history  Caballes – interest of ∆ is legitimate?  Standing  MN. v. Carter – non overnight staying/commercial guests = no standing  Consent  Schneckloth – Coercion – express or implied – totality test  Rodriguez – who gave consent – OK as long as cops reasonably believe possess common authority  Jimeno – was scope of search w/in the consent  Probable Cause  Gates  Warrantless – actual PC v. Warrant – substantial basis for PC  Exceptions o Terry – Reasonable Articulable Suspicion o Border searches - US v. Flores-Montano o Road Blocks – Sitz (drunk) OK; Edmond (crime) NO o Inventory Searches – where established by SOP  Warrant  PC – o Gates - Totality of the circumstances analysis – practical, common sense decision o Gates - Substantial basis for PC all that is required from reviewing court  Oath  Neutral magistrate  Specificity – Steele – officer w/ reasonable effort ascertain place intended  Franks – material misstatements that are intentional or reckless  Warrant Exceptions  Probable Cause + o Plain view – Hicks – can’t manipulate o Vehicles - Carroll o Exigency o Search incident to arrest – Belton (search passenger area of car too)  Warrant execution – acting w/in scope  Franks problem – deceitful affidavit to secure facially valid warrant  If invalid suppress unless o Exceptions  Inevitable discovery  Intervening act of free will  Was there good faith reliance on a facially valid warrant - Leon

6. But, the court did begin to use the due process clause of the 14th^ Amend. to craft rules that would apply to the states as well as the federal government II. Defining Due Process = Hurtado v. CA (US, 1884) = A. Why Important to get grand jury? b/c:

  1. Help protect against harrassment of prosecutors-capricious charges
  2. Give some legitimacy to proceedings to initiate charges
  3. It is an investigatory tool
  4. It is an political participation tool B. Faults or what’s wrong with system:
  5. Is one sided and secret– only what the prosecutor wants the Grand Jury to hear
  6. No application of federal rules of evidence
  7. Inefficient = drain on judicial resources and time a. Process tends to be inefficient
  8. b/c it’s a one sided, secret proceeding, A prosecutor can almost always indict a. “a prosecutor can indict a ham sandwich” C. look at both plusses and minuses – need to know what you wanted from a grand jury to be able to argue it properly D. Facts:
  9. Hurtado was charged and convicted of 1st^ degree murder
  10. He was charged by information, not indictment = means no grand jury ever considered the case E. He/ argues that absence of grand jury indictment for a serious crime violated the 14th Amend.’s guarantee of due process F. Issue: Whether CA was required to proceed by indictment in capital cases? Or= whether murder s like Hurtado were constitutionally entitled to a judgment by a grand jury that they should be charged, as a prerequisite to going to trial? G. Holding: It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be hold to be due process of law
  11. “tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate,….. witnesses…having counsel…is not due process of law” H. Reasoning:
  12. Part I of holding: b/c dp and grand jury are both in 5th^ Amend., so can’t be included, b/c would be redundant = According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of const. law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous I. Problem with this reasoning though= Harlan’s dissent:
  13. If this interpretive approach is correct, it is not a big step to say nothing in the bill of rights is required for due process – “parade of horribles” attack
  14. Another way to attack = use cannon of interpretation to argue another result, but problem is that playing on opponents field then a. However there are cannons for everything so look for the other cannons that decide the case your way

J. Part II – b/c dp consists of “any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice” K. Notes pgs. 83-93 - due process is for these things:**

  1. Tradition, general rules, not arbitrary, minorities protected from majority (idea that dp requires at least some protection of smaller group from larger)
  2. Lots of opportunities here for judicial review a. A gift and takes away L. We want a lot of things that are often at odds with each other and due process is the doctrinal term for how judges put that process into effect
  3. E.g - Want lots of process, but want speedy and cost effective M. Book says there are 4 distinct areas of due process law – but Parry thinks they overlap
  4. Rule of law
  5. Bill of rights
  6. Accuracy (and race)
  7. Fundamental fairness N. Parry’s Specific important DP Doctrines:
  8. Burden of proof beyond a reasonable doubt. In re Winship (1970), as elaborated and modified in later cases such as Medina and Patterson v. NJ (1977) a. Basically the prosecution bears the burden of proving each element of the crime beyond a reasonable doubt
  9. Vagueness review of criminal statutes , usually in context of freedom of movement and free speech a. good for free speech b. pretty good for loitering type of statutes c. beyond these things not very good to use/effective – so a straw you might grasp at though d. vagueness is for 2 things: i. to give fair warning ii. to restrain discretion = to work against abuse
  10. Involuntary confessions are inadmissible under dp , see expecially Brown v. Mississippi (1936), where confession obtained by torture a. Lots of caselaw here to describe what “involuntary” means b. There is An independent dp doctrine forbidding the admission into evidence of a involuntary confessions (independent b/c before incorporation) c. Want not coerced = of free and informed consent 4. Right to counsel in special circumstances a. What are “special circumstances” though?
  11. ’s right to obtain exculpatory evidence from prosecution , Brady v. Maryland (1963)
  12. right not to stand trial if incompeten t, Drope v. Missouri (1975) a. also picked up on in Medina b. What is incompetence though? – we don’t know – always a question
  13. some idea of fundamental fairness or shocks the conscience review , as in Rochin v. CA (1952) a. catch all due process b. it’s bad, it turns someone’s stomach

B. Issue: whether the Due Process Clause permits a state to require a  who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence? C. Majority says don’t want to use the Matthews 3 part balancing test – should use:

  1. history or tradition
  2. contemporary practice = consensus
  3. Is it Fair? D. Reasoning:
  4. No historical basis for concluding that the allocation of the burden of proving incompetence to the  violates due process
  5. Allocation of the burden of proof to the  does not offend due process E. Notes
  6. Hamdi in between the Medina and Matthews cases VI. Due process will be there, but not extraordinary

Ch. 3 the Right to Counsel and Other Assistance

A. the constit. Requirements

1. The Right to the Assistance of Counsel at Trial I. The Right to the assistance of counsel A. this is an interesting thing

  1. pg. 1642 – the 6th^ Amend. – says you can have counsel and also means that if can’t afford then still get
  2. a right to get something from the govt. which is extremely unusual by way of constit. and law B. Due Process
  3. Powell v. Alabama (spawned “ death is different” idea ) 2. Betts v. Brady a. “Special Circumstances rule b. could meanDeath cases/hard, complicated C. But how do you decide that this is a case with special circumstances? What standards to apply/how do you decide if  gets counsel?
  4. Prosecutor and the judge will decide this in tandem so
  5. Prosecutors usually appear before the same judge more than once so they need to be careful and not always do the “easy no” and says there are never special circumstances b/c then judge may be very suspect D. So go from Due process---to 6th^ Amend. and Gideon E. Gideon  right to appoint counsel--a serious case II. Gideon v. Wainwright (SC of FL, 1963) – overturns Betts v. Brady – Fundamental case for our class – if charged with serious offense (and maybe any offense) you get a lawyer if you can’t afford one A. Overrules Betts on 2 grounds:
  6. Betts departed from precedent by wrongly narrowing the circumstances under which counsel could be appointed (but this doesn’t hold a lot of water says P.)
  7. Betts is wrong – P. says analytically supportable, but B. Jusitice Harlan is better
  8. Says this result more consistent with more recent cases a. Betts has become an “outlier” – and that’s a reason to overrule

b. The case has been left behind

  1. Betts requires too much intrusion a. We’re constantly intruding on state court process- so better to have a rule and avoid this intrusion b. If we’re already going to be in the game let’s form a rule instead of an ad hoc balancing test etc. C. Downside
  2. Lawyers are inefficient – crim. Defense attys gum up the system a. In theory will make cases more complicated and longer b. If crim. Dockets getting longer then may never catch up
  3. Book says So forced to plea bargain by the right to counsel = costs a. Have to give something up to  in order to move system along b. P. says this is not clear it is a cost, b/c not sure what state would in fact under a jury trial (what are sentencing guidelines under trial vs. pleas) D. Facts:
  4. Judge would not appoint counsel b/c said state laws only do so in capital offense cases
  5. He defends himself
  6. Sentenced to 5 years in state prison E. What does Gideon come to mean – critical case here – III. **Notes – Argersinger v. Hamlin (1972) = Actual incarceration rule*****
  7. “ Actual incarceration Rule ” – if you are actually sentenced to jail time then you had a right to counsel at the trial that preceeded the sentence = if in fact you will be incarcerated then you have the right to a lawyer
  8. P. thinks that this really sets up a situation ahead of time whereby which the judge must make a determination of likelihood that  will be sentenced to jail
  9. But does leave some room for prejudice – if look at evidence in advance could prejudice IV. Alabama v. Shelton (AL SC, 2002) probation with the possibility of Jail = get counsel A. Probation case
  10. Charged with a crime and sentence is probation a. If a good person and follow guidelines then will be OK b. If not we will put you in jail
  11. So not for sure if going to be sentenced to jail, just potentially
  12. So by the time you know you are going to jail it is really too late a. Too late to retry with counsel B. If of opinion that no-one should go to jail without right to counsel then Shelton is consistent with Argersinger C. If of opinion that Argersinger really only puts a line where get counsel and not, then think that Shelton goes beyond what Argersinger decided D. Critical point for majority is that should never have to go to jail without a lawyer E. Critical point for dissent is that you may never have to go to jail so outside that rule F. Is Shelton a watershed case or note? The book suggests a creative way of dealing with these situations
  13. is that can only deal with the problem by enforcing the conditions of probation through contempt proceedings for failure to abide by those conditions, which could in turn lead to jail or prison as long as defense counsel is provided at the time of the contempt proceeding

a. Most agree that once the criminal process has begun then have a right to counsel b. Question is what about when being interrogated? At some point yes most agree you do

  1. in general, In investigatory stage there is not right to counsel *side note of Parry “make your record” or risk loss of challenge and on appeal don’t have the issue

Effectiveness of counsel

VII. Strickland v. WA (US, 1984) – P. says for this class know Strickland standard and 2 part test very well!!! A. 2 general things here:

  1. Need to have an effectiveness standard: idea that counsel has to meet some constitutional standard of effectiveness or competence b/c right to counsel would be meaningless w/out standards for adequate performance a. moving from rules to standards here
  2. although the right to counsel standard approaches the characteristics of a rule, the test for effectiveness is much more like an ad hoc due process standard (even though it is still technically under the 6th^ Amend.) B. “Rule”: the counsel’s performance so undermined the process
  3. benchmark = “Did the performance so undermine the adversarial process that it cannot be relied upon as having produced a just result ?” C. 2 Questions you have to ask = 2 part test
  4. Performance (objective) -- did the performance fall below reasonableness for the profession? a. Think of as a gross error standard – if can show gross error then you can win, but if not probably not b. From book “a court deciding an actual ineffectiveness claim must judget the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of the counsel’s conduct.” (not in hind sight)
  5. Prejudice reasonable probability of a different outcome? D. Critical piece = The convicted bears the burden of proving this to the judge
  6. And a lot of defference giving to the choices the atty makes
  7. A lot of tolerance for atty. behavior a. Did you have a strategy, did you have some approach? If you did , the ct. may find that it “was enough” 3. Also -From case- “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
  8. “in making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” E. Prejudice piece
  9. “The  must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different a. a “ reasonable probability ” is a probability sufficient to undermine confidence in the outcome F. dissent: Really a malleable standard/an all over the board standard
  10. Marshall suggests a couple things though: a. Should have definite standard for death cases = ct. rejects this

b. He has a problem with the prejudice thing: i. Suggests the right to counsel is an end in itself and have a right to have a competent atty stand by you against the power of the state ii. Ct. says they want a prejudice standard anyway b/c

  1. Right to counsel is critical to majority, say it is part of a fair, moral system… and that is what is required G. “Cost Problem” –
  2. see a lot in book that says it is just not affordable to provide good counsel to everyone a. how you feel depends on how you feel about the status quo of crim. System H. “judges are afraid”
  3. when it comes to imposing rules/laws on executive branch they don’t want to be too overbearing, they want to tread lightly b/c if they impose big costs on other branches, ultimately the SC will be the loser I. how do you get client from death penalty to life in jail?
  4. Humanize the client a. School records b. Friends c. Medical records d. Canvas neighborhood, etc.
  5. Problem = Pretty hard to do this without money and time to do it a. So how much can you expect J. How do you measure the reasonableness is tough is general idea VIII. Nix v. Whiteside (US, 1986) pg. 188 – the Prejudice Standard - A huge Prejudice case A. The ethics rules get read in B. Most of the cases are like Strickland itself
  6. Did more than nothing, but did not do enough
  7. Client was not helping him and he was obviously guilty of a series of crimes and lawyer got depressed C. A series of cases that show how deal with prejudice
  8. In Nix v. Whiteside says even if prejudicial it doesn’t count
  9. Kimmelman v. Morrison (rapist) a. Would have upheld the law, but would have allowed injustice of guilty man to go free b. Ct. says, yes, you get that b/c law says so
  10. Lockhart v. Fretwell (US 1993) 4. Williams v. Taylor (
  11. Glover v. US (US, 2001)- after this case it appears that any effect on the length of a prison or jail term constitutes Strickland prejudice a. Note – Glover type ineffectiveness claims would seem to be plausible only where the  is deprived, as a result of a lawyer’s mistake, of a particular sentence (or sentence range) to which he is legally entitled b. This is likely to be true only where the sentence is determinate, as opposed to broadly discretionary
  12. P. says possible to harmonize them in some rough sense, but they are in tension and that is a law – pt. is that hard to harmonize these cases though a. Best might be intuition and
  • no specific assistance to be given to accused (as opposed to assistance for the benefit of the accused) Finally, note there is a “clean-up” due process doctrine as well : due process can be violated by the introduction of unreliable identification evidence
  • a last resort claim
  • court holds that reliability is the critical issue – identification evidence can be introduced if it is reliable under a totality of the circumstances test (summed up in Manson v. Braithewaite (268) (1) Totality of the circumstances – (a) Even if tainted may allow (i) Factors
  1. Opportunity of the witness to view criminal at the time of the crime
  2. Witness’ degree of attention,
  3. The accuracy of his prior description of the criminal
  4. Level of certainty demonstrated at the confrontation
  5. Time between crime and confrontation (2) Emergency procedure exception
  • importance of advocacy – if court decides the reliability of ID is a matter for the jury, then defense counsel must cross-examine, argue in closing, or seek expert testimony (which may be difficult)

Chapter 4 – the Rise and Fall of Boyd v. US

I. Boyd v. US (US, 1886) A. Have a statute on pg. 278 - What is it that you need to prove to? How do you prove as prosecutor? What was going on here – smuggling? – hard to tell

  1. Smuggling/customs cheating – cheating the govt. of its money a. Invoice – showing buyer, seller, value, quantity, description b. Compel Boyd to testify (unlikely to get) – Boyd will deny i. Cannot compel b/c anything you ask will be to bring out incriminating evidence
  2. Purchase/possession of __________ - seller or buyer
  3. Value calculate customs duty
  4. importation B. Facts:
  5. Bought some plate glass and didn’t pay tax/duty
  6. Asked them to produce the invoice C. Issue: Is search and seizure, or what is equivalent thereto, compulsory production of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud? = NO, can’t force D. Dissent: only unreasonable seizure is prohibited. And this is not. Parry email:
  • court stresses novelty of the process, and then casts itself in role of defender of traditional liberties
  • one of those liberties is property – and we should see Boyd as within the Lochner tradition
  • doctrinally – why is this a search at all?
    • used functional approach – this is the equivalent of a search
  • doctrinally – why is the search unreasonable?
    1. court notes lots of times when seizure of property is reasonable, including seizure of records required to be kept
    2. but here, there is no entitlement to the records themselves (wanted only as evidence), whereas in other cases there is arguably a superior interest in other cases – that is, a property rights approach
    3. and, 4th^ and 5th^ combine to make the search unreasonable, because it is searching to get personal records made by the suspect to use those records against the suspect – that is, to use the suspect’s own words to incriminate him
  • idea of privacy and autonomy is there as well, but linked in Boyd to concept of property E. Gov’t. doesn’t get documents b/c not only a search, but an unreasonable search: why is it unreasonable?
  1. Lots of times when search and seizure is reasonable a. See pg. 281 middle – “So also, …
  2. Distinction drawn in Boyd is between the types of property the govt. can seize and those they cannot a. Your interest is subordinated to government’s or someone that government acting on behalf of
  3. whole point is to use this information as evidence – that seems perfectly reasonable a. today this is the way it is done – get docs first and then use and admit in court, but that is kind F. it is unreasonable b/c trying to get docs made by suspect (his thoughts, words, deeds, etc)
  4. want to use the suspect’s own words to incriminate him
  5. functional equivalent of forced self incrimination – unconsti.
  6. Seize private records and Let them do the talking G. One last thought – almost saying that if want privacy you need property
  7. “Superior interest in property”
  8. What privacy is has changed over time II. Gouled case ( in notes)
  • distinguishes between searches solely to get info in docs to be used as evidence, vs. searches to get things govt has an interest in getting
  • nothing special about docs – suggesting that the line instead is whether the item seized has the character of evidence that is self-incriminatory? Over time, court starts to make exceptions – why?
  • changes in society – increased regulation, including criminal regulation -doctrinally – corporations do not get the privilege (they are not a person), corporate agents must comply with subpoeanas even it incriminates them, expansion of required records doctrine (as number of required records expands.. .), narrowing of the Boyd/Gouled mere evidence category
  • limits on property rights translate into limits on privacy interests, but doctrinally there are also moves in the direction of protecting privacy independently – the most famous early move is Brandeis’ Olmstead dissent on

IV. How do we get from Boyd to Schmerber? Why care? = law reflects a social system

  1. Dynamic legal system
  2. law also has something to say about social stuff Boyd
  3. 4 th^ and 5th^ Linked
  4. Privacy and Property a. Private property protected
  • to Schmerber/Warden v. I.
  1. testimony
  2. privacy not property
  3. reasonableness  to fisher/Andresen
  4. boyd dead?
  5. Access to docs for all purposes except act of production issues  to Hubbell
  6. What does it mean?  govt. needs constant flow of info V. Warden, Maryland Penitentiary v. Hayden ( US 1967) – gets rid of “mere evidence rule” A. Hold: we reject the distinction as based on premises no longer accepted as rules governing the application of the 4th^ Amend. B. Reasoning:
  7. No viable reason to dinstinguish between intrusions to secure “mere evidence” from intrusions to secure fruits, instrumentalities, or contraband
  8. Pg. 299- VI. Berger case (wiretapping in NY case) A. Set up the right statute to do what you want it to do B. After this, the only way you can keep information private is to keep it in your mind 1. If you say it, write it down the gov’t has a right to it C. Anything you say or write you have to presume the govt. can get – it’s all OK Boyd – Rising or Falling? VII. What is it you want in/from the information? What do you want to do with it? A. Core of this that want to create a timeline or documents
  9. Turn document into admissible evidence B. Information that will lead you to a more targeted search C. ID other people you may want to talk to or indict
  10. Who are the people involved in this alleged criminal activity? D. Can maybe use as leverage E. One of the reasons to have a subpoena is to
  11. turn those documents into exhibits
  12. the docs get authenticated = we know where they came from VIII. Andresen (1976) case – dealt with production of a person’s private papers A. Sole issue is “admissibility”
  13. Does the 5th^ have any application at all?
  14. A good logical argument that all it is about is whether certain items can be admitted at trial B. How do privacy protections in general play into this?

1. Answer, doctrinally, is not much

  1. Gets balanced away C. Reasoning:
  2. Documents are voluntarily prepared and don’t force (compel) the person to authenticate, a handwriting expert was used D. Holme’s “A party is privileged from producing the evidence, but not from its production
  3. This principle recognizes that the protection afforded by the Self-Incrimination clause of the 5th^ Amend. “adheres basically to the person, not to information that may incriminate him IX. Fisher v. US (US, 1976) – production of business papers is allowed A. Held: an atty’s production, pursuant to a lawful summons, of his client’s tax records in his hands did not violate the 5th^ Amend. privilege of the taxpayer “b/c enforcement against a taxpayer’s lawyer would not ‘compel’ the taxpayer to do anything—and certainly would not compel him to be a ‘witness against himself’ B. Can’t make a document protected/immunize by simply taking it to your lawyer’s office
  4. Needs to be part of atty work product and even then may not be immunized C. Rule - Access to docs for all purposes except act of production issues
  5. Permitted the govt. to force a person to furnish incriminating physical evidence and protected only the “testimonial” aspects of that transfer D. Under 5th^ amend. the evidence has to be:
  6. Compelled – most docs
  7. Testimonial, and
  8. Self Incriminating E. Most documents can be taken b/c not compelled/ self incriminating 1. Only certain super private docs like diary are maybe off limits = a split in courts F. Privacy - 5th^ Amend. can’t be primarily driven to protect privacy, what it protects are the 3 things above
  9. prohibits you being forced to testify against yourself
  10. if a privacy protection in there it is a small one, not insignificant, but small G. If government concerned about production issues: can get a valid search warrant , assuming it has probable cause
  11. A valid search warrant will trump any production issues H. The 5th^ Amend. is not seen as a privacy protecting vehicle by the current court/view
  12. Whether or not it is compelled, testimonial, and self incriminating is a. Compelled narrowly interpreted = forced by government to produce b. Testimonial – I. Hypo – of journalist who takes pics of an altercation that police missed and govt. gets warrant and hauls away negatives
  13. Can the newspaper resist the warrant under the 1st^ and 4th^ amend.
  14. Need probable cause for warrant, but does this show probable cause?
  15. Supreme Ct. said that newspaper loses a. Any privacy interests that the Stanford Daily has is overridden by ???
  16. In response to this Congress passed a law that should use a subpoena instead of a search – b/c less intrusive J. 1 st^ piece of Fisher – Boyd is Dead
  17. there is no 5th^ amend. protection based on privacy
  1. 1 st^ one = hard to administer this test
  2. 2 nd^ – hard to square with our regulatory state F. 2 basic kinds of immunity
  3. “use immunity” – using the person directly and
  4. “derivative use immunity” – using this person to get other documents, people, etc. that can be used against you G. b/c he used his mind the govt. could not make use or even derivative use of the information
  5. it was fruit of the poisonous tree *****in any event, remember this is 5th**^ amendment only – 4th^ amendment will still allow a search in lieu of a subpoena and there is no act of production doctrine that allows you to resist a search – so not problem with govt. conducting warrant searches

Chapter 5 – the 4

th

Amendment

I. The 4th^ Amend. in General (2 requirements that are linked) all this up to E on board A. Requirement of Warrant Clause

  1. No warrant w/out probable cause B. Requirement of Reasonableness C. These 2 are linked
  2. Are they independent or interrelated is a big question to think about D. Remedy? (for more on these cases see pg. 66)
  3. Exclusionary rule
  4. Weeks v. US (1914) (+ Elkins)  says exclusionary rule applies to feds a. Applies where federal proceeding and federal investigation b. But what if get state officials to do illegal search/investigation and then get them to hand over i. Elkens case says no, can’t do that, exclusionary rule still applies
  5. Wolf v. Col. (1949)  incorp. of 4th^ but not exclusionary rule a. So now applies to the states b. But does not apply the remedy of the exclusionary rule
  6. Mapp v. Ohio (1961)  overrules Wolf E. Utility/Value of: big questions to think of here
  7. Exclusionary rule vs other remedies vs. no remedies F. That fact that who you are litigating for II. Exclusionary Rule : Evidence obtained in violation of the 4th^ Amend. is going to be suppressed= meaning it is not going to be allowed at trial A. most criminal practice is regarding suppression and? III. Mapp v. Ohio (1914) – a huge case, applies to all states A. General
  8. A classic Warren court opinion = Is an activist case B.  found with certain lewd and lascivious books, pictures, and photos in violation of Ohio revised code C. Dirty books aspect - Some judges argue using this D. Rule: In any criminal prosecution, if the officials violate your 4th^ **amend. rights, the fruit obtained from that search must be excluded at trial
  9. Whenever govt. officials violate the 4th**^ Amend. evidence must be excluded at trial = suppress illegally obtained evidence

E. Why do we overrule Wolf

  1. Said there is a revolving standards idea = Exclusionary rule is becoming more accepted and less controversial F. Basic idea that Wolf was wrong when it was decided (2 pieces to this)
  2. It’s the same 4th^ Amend. – just b/c incorporated does not change remedy a. Nothing about incorporation that should strip away remedy
  3. *****Without exclusionary rule, it doesn’t’ mean anything ** big reason here**! a. Without this rule there is no reason to obey the 4th^ Amend. b. Without exclusionary rule, will just be paper G. Judge Harlan dissents and argues against 1st^ reason= says that don’t need same remedy for states
  4. Incorporation is just due process so just have to ask if it is fair H. 3 questions need to break down
  5. What is it we are trying to achieve?
  6. Whatever those goals are, how well does the exclusionary rule serve them?
  7. What else is there? – Maybe exclusionary rule is like democracy, not the best, but better than all others IV. Other Remedies? A. If originalist might want to know what the remedy would be in 1790 for common law trespass
  8. In 1790 wasn’t a lot of violations of 4th^ Amend. by federal officials
  9. 4 th^ wasn’t being applied by official police force
  10. arguably there have been enough changed circumstances that this doesn’t seem like the best way to go about this B. if talking in deterrence terms, exclusionary rule might be under deterrence – b/c won’t be able to remedy all violations with exclusionary rule
  11. what about innocent people that are illegally searched?
  12. When police do search and find nothing? C. If in compensation category – how do you figure out how much it should be? D. Punishment for violation E. Exclusionary rule is about tailoring a remedy to a violation and ….? V. Other cases A. Monroe vs. K?? = §1983 action came about as an option for a remedy VI. Anderson v. Creighton (8th^ Cir. App., 1987) A. Thing he wants us to get out of this case is DEFERENCE
  13. There is an awful lot of deference B. Have to ask, before you let the case go forward, “Could a reasonable officer have determined that the course of action complied with the law’s reasonableness requirements
  14. The law requires you to act reasonable, and in approaching that you have to have acted reasonably
  15. One of first things you need to do in this type of case is bring up 1983 violation claim C. ***Could have acted reasonably, but were wrong D. Reason for deference
  16. If we allow too many damages claims will discourage searches etc. E. Although we have some idea of what optimal deterence is, we have no way of knowing how to get there