Criminal Procedure I. A. Intro Bill of Rights-Due Process applied to st.

1. 4th Amendment-Clause 1-No unreasonable search/seizure u/s/s of person, house, papers and effects. (p/h/p/e). Clause 2-No warrants shall issue w/o probable cause pc, supported oath/affirmation, particulars describing place to be searched, person, or thing seized. a. Right inside home, but govt. has some level of exception-w. pc & warrant b. Interest proctected = privacy, thoughts protected by 4, 5, 6 Amend. c. Seizure interest-liberty/autonomy/dignity. d. 4th Am. guarantees security against arbitrary power. e. What is a search? 1st. premise-a warrantless search is unreasonable. f. What is reasonable? exceptions? modern= balancing of interest g. Exclusionary rule-always behind 4th Am. if police blunders, d walks free. h. Prior to Katz-not a search if no physical intrusion, yes if consent b/c misplaced trust/assume risk & no trespassing. KATZ-revolutionary case. -Ct. said Katz won b/c 4th Am. protects people not places-so no more Const. prtotected areas & physical intrusion. Privacy=something we seek to preserve to ourselves, even if in area accessible to public. Katz closed door, propety not totally unimportant, but tech. has changed. Harland=phone booth more like a home than open field, intrusion doesn't have to be physical...electronic.Whether individual had expectation of privacy which society is prepared to recognize as reasonable. 2 Prong Test=search. 1. Person exhibits (by external signs, seeking to perserve privacy) actual expectation of privacy 2. the expectation is one society recognizes as reasonable. 2. REASONABLE=the privacy on which someone justifiably relies a. private v. knowing public exposure b. private v. voluntary exposure to 3rd pty (assumption of risk, misplaced trust) 3. White-Analyzed under Katz-he expected privacy, but took risk that person w. keep private=misplaced trust. a. Diff. bet. Katz/White=no misplaced trust in Katz-White assumed the risk, govt. listening w. permission of one of the ptys. b. SIMULTANEOUS TRANSMISSION-Ct. said illogical b/x if you don't think reasonable expectation of repeating, then no expectation to be transmitted (more reliable & accurate)-overruled On Lee (ct. said no instantaneous transmission). Dissent-More risk on innocent person too, stops social interactions. 4. Smith-Pen register-voluntary info. of phone co.=no expectation of privacy 5. Areas MOST PROTECTED----------------------------------------------Least (home, family, sanctuary)-------------------------------------Open field Oliver-even if you own open field, people can trespass. 6. CURTILAGE-area around home that is protected-4 factors 1. proximity to home 2. exposure around area 3. nature & use 4. precautions taken to exclude 7. Ciralo-Marijuana in yard-plane over property-ct. said knowing exposure to public bc anyone on 1

plane could see, assuming risk. 4th Am. has never been extended to require officers to shield their eyes when passing by a home on public thoroughfare. 8. Bond-boarder police, bus, bag w. drugs. Ct. used 2 pt. test-1. did he exhibit expectation of private? yes, used opaque bag, placed above his seat. 2. society prepared to recognize as reasonable? yes, passenger does not expect others will feel bag in exploratory way...so, violation of 4th amend. right. BOND_squeezing exceeded what public expects: 1. PURPOSE-public to move; police to inspect exploratory manner: 2. STRENGTH-police hard squeeze 3. PHYSICAL INTRUSION, TACTILE-different from Cirola. Dissent-border police routinely inspect bags, t. ct. saw nothing unusual re agent's squeeze of bag. 8. Kyllo-thermal "off the wall" search revealed marijuana growers. Scalia-violation of 4th am. & unlawful search w/o warrant bc device not in public use, details of home that would previously been unknown w/o physical intursion. Dissent-Off the wall surveillance passively measured heat, not " through the wall" intrusion, anyone could notice heat from house, no info. re interior of home...court is assuming that an inference=4th am. violation. bad public policy because use of monitering devices useful public service. ON BOARD- FACTORS CT. TURNS TO IN MAKING DECISION NOT A SEARCH, NO REASON TO EXPECT PRIVACY: 1. Knowingly exposure (public) 2. Voluntary divulging information to 3rd party -misplaced trust -assumption of risk 3. No physical invasion 4. No intimate details observed 5. Nothing worth protection (open field-not something society deems needs protection. 6. Nothing more than public could see (Ciralo-marijuana from plane)...but see Bond (What public normally does v. What it could do. II. Chap. 2-Unreasonableness & Probable Cause A. Probable cause to search "exists if the facts & circumstances w/i the officer's knowledge & of which they have reasonable trustworthy info. are sufficient in themselves to warrant a man of reasonable caution in the belief that AN ITEM SUBJECT TO SEIZURE WILL BE FOUND IN THE PLACE SEARCHED. In essence, likelihood that 1. something subject to seizure by govt. (contraband, evidence of crime) 2. is presently 3. in a specific place to be searched. B. Probable cause to arrest "exists where facts & cir. w/in officer's knowledge & of which they have reasonable trustw/y info. are sufficient in themselves to warrant a man of reasonable caution in the belief that AN OFFENSE HAS BEEN OR IS BEING COMMITTED BY THE PERON TO BE ARRESTED. In essence, likelihood that 1. an individual 2. has or is committing a particular offense. C. PC does not require certainty, only likelihood. The standard of warranted searches is less demanding than warrantless searches. D. PC based on HEARSAY=Draper case. Ct. said could be used if accurate informer, later changed under Spinelli. E. Spinelli-gambling-FBI investigation, given 2 telephones by informant-got warrant-D 2

challenged warrant. Whether warrant should have been issued. Ct. used Aguilar 2 prong test-1. tip must have details of underlying circumstances (here only phones) 2. informant must have reliable info. (here informant only knew that those were the numbers). 1. If affidavit rest on hearsay, Aguilar needed 2 things: 1. informant must have seen facts asserted or 2. has good reason to believe the information. 2. Dissent-Here, FBI report & informant...warrant issued supported by oath and describing place searched, things seized...ok Constitutionally & t. ct. found pb to issue. F. Gates-anonymous letter re drug transaction. Ct. ruled to abandon Spinelli 2 prong test & use totality of circumstances, use common sense bc PC is practical, non tech. concept. Magistrate's determination when issuing warrant should be given deference, if not police will resort to warrantless searches, ordinary citizens w/n help. 1. Dissent-Magistrates should decide PC, & no intrusion unless some assurance of reliable info. Assure magistrate as independent arbitrator, never used anonymous before, so no basis for assuring reliability. Derogation of rights secured by 4th Am bc no concern for innocent re reliability of manner & person. G. Despite Gates, some st. cts. still adhere to Spinelli. H. P. 73 Whren-Issue-Whether the temporary detention of motorist who police have pc to believe has committed a civil traffic violation is inconsistent with 4th am. prohibition against unreasonable seizures unless a reasonable officer would hae been motiated to stop the car by a desire to enforce the traffic law. Civic traffic infraction, stopped, saw drugs & arrested. 1. D argued stop had not been justified by PC of illegal activity & officer's approach to give civil warning was a pretext...bc D were black. 2. Ct. said bc of racial implications 4th am. test whether an officer acting reasonably would have made the stop for the reason given. 3. Past cases found validity of search absenct pc. 4. Officer's st. of mind does not invalidate objectively justified search. 5. Reasonableness-whatever subjetive standard6. Balancing govt. & ind. interest. 7. D argues that so many traffic infractions that one could be stopped for makes everyone guilty of some violation, so police could single out anyone. Ct. said even if, no realistic alternative to common law rule that probable cause justifies a search and siezure.

KATZ-2 Prong Test=search. 1. Person exhibits (by external signs, seeking to preserve privacy) actual expectation of privacy 2. the expectation is one society recognizes as reasonable.

2.

REASONABLE=the privacy on which someone justifiably relies a. private v. knowing public exposure b. private v. voluntary exposure to 3rd pty (assumption of risk, misplaced

ON BOARD- FACTORS CT. TURNS TO IN MAKING DECISION NOT A SEARCH, NO REASON TO EXPECT PRIVACY: 1. Knowingly exposure (public) 2. Voluntary divulging information to 3rd party -misplaced trust -assumption of risk 3. No physical invasion 4. No intimate details observed 5. Nothing worth protection (open field-not something society deems needs protection. 6. Nothing more than public could see (Ciralo-marijuana from plane)...but see Bond (What public normally does v. What it could do.

PROBABLE CAUSE TO SEARCH 1. Subject to seizure 2. Is presently 3. In particular place to be searched. (warrant could become stale)

AGUILAR 1. Basis of knowledge (how did he get information?) 2. Veracity-how reliable is informant? AGUILAR SPINELLI Threshold: Is tip crucial for establishing Probable Cause. If so, Step 1 Evaluate TIP ALONE under Aguilar to see if it passes Step 2 Tip + corraboration-details lead to inference that tip is self verifying-had to be person on inside.

III. Chap. 3-Unreasonableness & Warrant Requirement A. Framers not concerned re warrantless searches, but about abusive, overreaching use of warrants. Instruments of oppression...general warrants & writs of assistance issued w/o showing of pc. 2nd clause of 4th am. was designed to preven abuses, so " pc supported by oath or affirmation, must particularly describe place to be searched, & person or thing to be seized. A1. The Warrant Requirement & Search of Person, houses, papers & effects. 1. Johnson v. US 1948-Opium smell outside hotel room, police told her she was under arrest bc they were going to search her room. a. Entry was granted in submission to authority, rather than intentional waiver of const. right. b. Point of 4th am. is not to deny law enforcement support which reasonable men draw from evidence, its protection consists in requiring those inferences to me made by neutral magistrate. If not, it would nullify the 4th am. & leave people's home secure only at discretion of officers. c. Exceptions not offered , except inconvenience to officers. B. The Warrrant Requirement & Seizures of Persons 1. US v. Watson-Informant told inspector that Watson has stolen credit cards. Informant gave signal & Watson arrested. No cc on his person, inspector asked if he could search car, Watson said okay. Insp. found stolen cards. Issue: Admission in evidence of cc prohibited by 4th Am? a. Arrest was not invalid bc executed w/o warrant. b. Fed. stat. re postal inspectors-'strong presumption of constitutionality due to act of Congress as to "reasonableness." c. The usual rule is that an officer may arrest w/o warrant one believed reasonably to be guilty of felony. d. Watson's arrest comported w. 4th Am. so consent ok for car. e. Officers can arrest w/o warrant crimes committed in his presence and not committed in his presence if reasonable ground to make arrest. f. Dissent-common law considers arrest warrants far more important than today's decision leaves it. 1. Typically ct. uses 2 pt. analysis hether warrant needed: a. whether privacy of citizens will be better protected by ordinarily requiring warrant to be issued before they may be arrested. b. whether a warrant requirement unduly burdens govt. intrst. 2. But here, there was no exigency bc not unanticipated or used to avoid arrest warrant requirement...officer could have gotten a warrant. B. The Warrant Requirement and Seizure of Persons 1. Atwater v. City Lago Vista-Right to warrantless arrests for misdemeaner.-Pulled over by cop bc children did not have seatbelts on. She claimed violation of 4th A Ct.found, We cannot conclude that the 4th Am. As originally understood, forbade peace officers to arrest w/o a warrant for misdemeanors not amounting to or involving breach of the peace. Even though she suffered humiliation in a small town. a. She claimed that arrests only for breach of peace=violence
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b. The Court rejects Atwaters request to mint a new rule of constitutional law forbidding
custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government can show no compelling need for immediate detention. She reasons that, when historical practice fails to speak conclusively to a Fourth Amendment claim, courts must strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness.

c. The standard of probable cause applies to all arrests, w/o need to balance the interests involved in a particular situation. If an officer has probable cause to believe that an ind. Has committed even a very minor criminal offense in his presence, he may, w/o violating the 4th A arrest the offender. d. Atwater rule: Authorizes arrests for all minor offenses. C. Issuance, Content, and Execution 1. Wilson v. Arkansas p. 126-1995-Knock and Announce Principle-Police had warrant based on informant, Wilson claimed the officers entered the home while they were identifying themselves in violation of 4th am. Requirement to knock and announce PRIOR to entering. a. Privacy in home-knock and announce principle embedded in American law. b. Ct. held that in some circumstances an officers unannounced entry into a home might be unreasonable under 4th a. That is not to say that every entry must be preceded by an announcement. a. Later, in Richards v. Wisconsin said in order to justify a no-knock entry, the police mast have 1. REASONABLE SUSPICION that knocking and announcing under particular circumstances 2. Would be DANGEROUS OR FUTILE or 3. Would INHIBIT THE EFFECTIVE INVESTIGATION of a crime (destruction of evidence. 3. ANTICIPATORY WARRANTS a. US v Grubbs 2006 1. Anticipatory warrant-warrant based on an affidavit showing probable cause that at some futre time (but not presently) certain evidence of crime will be located at a specific place. 2. Most subject their execution to some condition precedent other than mere passage of time-so called tiggering condition. 3. If govt execute before the triggering condition, there would be no reason to believe the item described in the warrant could be found at the seaarch location, the triggering condition which establishes probable cause has not been satisfied when the warrant is issued. 4. Probable cause exists whenthere is a fair probability that contraband or evidence of a crime will be found in a particular place...all warrants are anticipatory.

5. Ant. War.-to comply with 4th Am. 2 prerequisite of probability a. If the triggering condition occurs there is a fair probability that contraband or evidence will be found in that particular place. b. There is probable cause to believe that triggering condition will occur. B. Anderson v. Maryland 1976-Atty. Fraud in real estate told clients no liens, also defrauded insurance co. Crime of false pretenses...Investigator applied for search warrant for law offices, judge determined probable clause and issued the warrant. 1. Anderson contened 4th Am. Right violation bc the descriptive terms of the search warrant were so broad as to make them impermissible general warrants 2. Specificity of Search Warrant- general warrants are prohibited by 4th Am. 3. The warrant here was to search for and seize evidence relevant to the crime of false pretense and Lot 13T. 4. Dissent: After lengthy detailed listing of items to be seized, the warrant allso authorized the seizure of other fruits, instrumentalities and evidence of crime at this time known.

IV. P. 143-Reasonable searches WITHOUT WARRANTS: Nature and scope of EXCEPTIONS to warrant requirement
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A. Searches incident to arrest 1. Chimel v. California-Police had arrest warrant, but not search warrant, went in and searched 3 bdroom house. Rsable to search for weapons, but went beyond scope. Reasonable test: search of an arrested man and items within his immediate reach must in almost every case be reasonable bc there is always the danger he will try to escape, seize weapons, destroy evidence. Arrest itself may make it impractical to get search warrant. Officer must establish exigency (could destroy evidence). 2. Rule: If someone is lawfully arrested, the police may search her person and any area surrounding the persons reach. 3. Rationale: Search is permissible as a protective measure a. officers safety & b. destruction of evidence. 4. US v. Robinson-Officer had probable cause to arrest because officer knew Robinson was driving w. Suspended license, arrested him for operating after revocation & then began to search him, crumpled cigarette box in pocket, heroin. 5. Search incident to lawful arrest=exception=2 propositions, 1. Search may be made by virtue of the arrest 2. Area within control of arrestee. 6. Justification=need to preserve evidence on his person for trial. 7. Rule: In a lawful custodial arrest, a full search of person is reasonable. 8. Officer entitled to seize fruits, instrumentalities, contraband of crim. conduct. 9. NY v. Belton 1981-Officer stopped speeding car, searched passenger compartment of car, leather jacket, cocaine. 10. Rule: When policeman has made lawful custodial arrest of the occupant of an auto, he may search the passenger compartment of that auto., also may examine containers (including luggage) in the interior of the passenger compartment, not trunk. Even when officer approaches after arestee is outside of car. 11. Justification: to give officers clear bright line rule. 12. P. 170-note 4-Washington v. Chrisman-Arrested & told officer he wanted to go to his dorm room, officer accompanied. 13. Payton v. NY-Arrests w/o warrant searching for person at home=violation of 4th am to be secure in home. 14. Rule: absent exigent circumstances, officer may not enter home to arrest w/o a warrant. 15. Rationale: warrantless arrest entries constitute severe invasion of personal privacy in home. 16. Question***does this do away w. Knock & announce?? 17. Steagald v. US.-1981-Agents had warrant to arrest Lyons, not search warrant, searched home of Steagald, found & seized 43 lbs. Cocaine. 18. Rule: An arrest warrant suffices to enter suspects OWN home to arrest him. 19. Rule: If probable cause, no warrant to apprehend in public place.
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20. Rule: Subject to arrest warrant can be seized before entering or after leaving home of 3rd party. -------------------------------------------------------------------------------------------------------------

SILA- Person Immediate control SILA- Officers safety Evidence SILA-new rule under GANT: 1. Lawful arrest 2. Contemporaneous 3. Recent occupant

a. unsecured & within reaching distance Or reasonable that evidence might be found 4. Passenger compartment & containers ------------------------------------------------

B. Exigent circumstances 1. Warden Maryland Pen. V. Hayden-chased suspect to home, wife offered no objection to search. Found in bed, police searched toilet tank, found gun, etc. 2. Rule: Warrantless search ok if delay would be dangerous to lives (exigency). 3. Evidence might disappear. 4. Vale v. Lousiana-arrested outside of home, then search. S. Ct. said no bc police could have gotten a search warrant. 5. Police cannot create the exigency.

C. Automobile Doctrine 1. Chambers v. Maroney-Right to search and seize not dependent on right to arrest, but on reasonable cause that contents of car offends the law.
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a. Probable cause, if stopped on highway may either 1, search on spot 2, temporarily seize and get a warrant b. In Chambers did both...ok bc done at night. 2. Search warrant unnecessary if probable cause to search auto stopped on highway because car is moveable. 3. Texas v. White-d tried to pass fraudulent checks at bank, police called, stopped at car, asked to search, d refused, police did anyway and found fraudulent checks in car. 4. Police officers with probable cause to search an auto at the scene where it is stopped could constitutionally do so later at the station house without a warrant. D. Inventory Search-not thought of as a search bc not looking for something. 1. Must be limited to standardized procedure 2. Presumptions: a. Protection of owners prop b. Protection of officers-false claims c. Safety d. Identity 3. Done if: a. Impounding is lawful b. Not pretextual c. Using police procedure. 4. Scope-place where people have access. 5. Containers-if in auto, then automobile exception, NO WARRANT. If outside, need probable cause, may seize temporarily, but must get warrant. 6. Container Rule-seize ->warrant. If in car ->auto exception ->no warrant required. E. Consent Searches 1. Schneckloth v. Bustamonte-Consent is only way they can search bc no probable cause & no arrest. a. Casual car stop-consent granted-found stolen checks. b. Holding if consent voluntary based on totality of facts, then no 4th Am guarantee when outside custody and consent given. Burden on d to prove coercion/undue influence. 2. US v. Matlock-Mrs. Matlock gave permission. a. Rule: If one inhabitant gives consent, search is admissible. b. Shared tenancy is understood to include an assumption of risk on which police officers are entitled to rely, and although some group living together might make an exceptional arrangement that no one could admit a guest without the agreement of all, the chances of such a scheme is too remote to expect visitors to investigate a particular households rules. 3. Georgia v Randolph-husband-no consent, wife consent. She cannot consent for him. a. Rule: Consent to conduct warrantless search of residence given by one occupant
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is not valid in the face of the refusal of another occupant who is physically present at the scene to permit the warrantless search. b. Rule: Warrantless search of shared dwelling over the express refusal by a physically present resident cannot be justified as reasonable as to him on the basis of consent given by another resident. 4. Rodriguez: Beaten woman calls police to moms house, says boyfriend beat her at their home. He is now sleeping, she let them in. Police find him and drugs. No violation bc police reasonably believed she had authority to consent. a. Rule: Exception for consent extends even to entries and searches with permission of a co-occupant whom police reasonably but erroneously, believe to possess shared authority as an occupant. 5. Consent requirements: a. Voluntary-based on totality of circumstances b. BOP-government c. NOT A WAIVER d. Joint occupants1. Common authority or 2. Sufficient relation 3. Justification-assumption of risk or her own right to let people in. 4. Rule for 3rd pty-actual or apparent authority. F. 1. 2. 3. 4. Plain view seizures-For SEIZURE Lawful vantage point In plain view Lawful access Immediately apparent (probable cause)

5. Horton v. California-Inadvertance is not necessary condition to plain view seizure. As long as police had prior justification for an intrusion and came accross incriminating evidence, it is constitutional. 1. seizure-property interest less important than privacy interest bc privacy cannot be returned once taken away. 2. As long as officer acting within scope of search. 6. Arizona v. Hicks p 307 a. PROBABLE CAUSE FOR PLAIN VIEW-not reasonable suspicion. b. Seizure bc turned over to look at numbers. CHAPTER 5- THE BALANCING APPROACH TO 4TH AMEND. REASONABLENESS I. STOPS, FRISKS AND RIGHT TO BE SECURE IN ONES PERSON, HOUSE, PAPERS AND EFFECTS. A. Constitutional Doctrine and its Theoretical Underpinning. B. Reasonable now means balancing of interest 1. Terry Frisk doctrine (Chap 5)- A terry stop involves a momentary encounter bet. officer and suspect while an in custody arrest places the two in close
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proximity for a longer period of time. a. What is required? REASONABLE SUSPICION (more than a hunch)...specific, articulable facts-criminal activity or armed & dangerous b. Seizure-physical force or show of authority. c. Why not require warrant? Exigency d. Why not probable cause? If officer waited, perhaps dangerous thing has occurred. Balance of keeping officer safe. e. Officer always has right to approach someone and ask questions f. Obj. Standard-would facts available to officer at moment of s/s warrant a reasonable man that action was appropriate. g. Govt.. interest 1. Crime prevention 1. Officer taking steps to protect self-no unnecessary risks. h. Distinction from SILA-SCOPE different-limited to weapons-not full search.-no justification to prevent loss of evidence, sole justification is to protect police. i. Narrowly tailored, ok if: -police believe criminal activity -police believe armed and dangerous -limited to outer clothes. -only reasonable suspicion. 2. Dunaway v NY. a. Seizure only reasonable if supported by Probable cause. b. Tension between balancing test and pc II. SEIZURE OF PERSONS A. Us v. Mendenhall1. Issue: Was airline passenger seized when officers confronted her upon deplaning, asked for ticket, and asked if she would accompany them? 2. Rule: Seizure: a person is seized when freedom of movement restrained through: a. Physical force b. Show of authority.-determined by reasonable person under circumstances would believe he was free to leave. 3. Determined not seized: no obj reason for d to believe she was not free to end conversation and go on her way a. Agents not uniformed or display weapons b. Did nto demand id or ticke c. No inference that she could not leave. d. Totality shows consent to comply with officers. B. Florida v. Bostick 1. Officer without articulable suspicion approached an individual on buss and asked him to search his luggage. 2. Rule: No seizure occurs when police ask questions of an individual, ask to examine his ID and request consent to search luggage, so long as officer does not convey
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message that compliance with their request is required. 3. Cramped bus is a factor, but not only factor. Police may question. 4. Not free to leave, but because of other reason (riding on bus). C. California v. Hodari 1. Young man continued to flee from police after being told to halt, threw off bag of crack before police caught him. 2. Rule: An arrest (seizure) occurs when phycisal force has been applied or when person submits to assertion of authority. 3. An arrest has not occurred when a person runs from the police.

III. The showing needed to stop and frisk-articulable reasonable suspicion A. Illinois v. Wardlow-Is persons sudden and unprovoked flight from police sufficiently suspicious to justify the officers stop of that person?
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B.

C.

D. E.

Holding. Yes. Police officer did not violate 4th am when stopped bc officer was justified in suspecting he was involved in crim acti and in investigating further. Nervous, evasive behavior is pertinent factor in determining reasonable suspicion to justify stop. 2. Totality of circumstances when fleeing from officer. 3. Ct. refused to make bright line rule re flight from officer. Alabama v. White-Cops received anonymous tip re d was going to motel w. brown bag. She consented to search of car, discovered cocaine. 1. Whether anonymous tip corroborated by cops independent investigation provides reasonable suspicion? 2. Holding. Yes. Ct. aid informants veracity, reliability and basis of knowledge are relevant in reasonable suspicion. Here, also cops investigation, so reasonable suspicion quality and quantity to consider totality of circumstances=reasonable suspicion for stop. Fla. V. J.L.-Anonymous caller said black man w. plaid shirt at bus stop w. weapon. Apart from tip, cops had no reason to suspect illegal conduct. ..did not see firearm or observe unusual movement. Officer frisked J.L and seized gun in pocket. 1. T. Ct. granted motion to suppress gun as fruit of unlawful search, CAP reversed, Fla. S Ct. quashed and held invalid under 4th am. 2. U.S. S. Ct. held person carrying gun is not, without more, sufficient to justify stop and frisk. Officer, for self protection and others, may conduct carefully limited search for weapons of outer clothing of person engaged in unusual conduct if officer reasonably concludeds that crim act is afoot or person armed and dangerous. 3. Here, suspicion from tip from call from unknown location and caller. 4. Tip lacked sufficient indicia of reliability to provide reasonable suspicion for Terry stop: provided no predictive info and left police wo means to test informants knowledge or credibility. 5. Ct. declined to adopt the argument that Terry analysis should be modified to license a firearm exception under shich a tip alleging an illegal gun could justify stop and frisk enven if accused would fail standard presearch reliability testing. 6. Facts in this case do not require ct. to speculate re tip re bomb. Fla. V. Royer-Terry seizure ok when officer observed nervous person in airport, one way ticket, no suitcase, assumed name. Us v. Sokolow-Ct. found reasonable suspicion if stopped bc paid w. $20 bills, travelling under name that did not match phone no, to Miami, nervous, no luggage. 1.

IV. Permissible Scope of stop, frisk and sweeps A. Hayes v. Fla. Officers suspicious of man went to his home to fingerprintre relunctantly accompanied cops to station for fingerprinting, arrested. 1. Can police transport suspect to station for fingerprinting, wo his consent or probable cause or warrant? 2. No. There was no prob cause or warrant to forcibly remove person from home. B. US v. Sharpe-Cops followed truck & Pontiac w. quilted material, riding low, concluded heavily loaded. 1. Whether reasonable under circumstances facing Off. Cooke and Thrasher to detain
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Savage, whose vehicle contained evidence for 20 minutes. 2. Yes. It met dual inquiry of reasonableness. Special Balancing Context 1. School Searches-NJ v. TLO-student in school, searched purse based on what teacher had said, found cigarrettes, further, discovered drugs & sale of drugs. a. Findings-School officials are government actors for 4th am purposes, but search permissible bc. Balancing childs privacy v. maintaining discipline in school. b. Warrant requirement unsuitable for teachers. c. Reasonable suspicion-what teacher had said. d. Exception granted to warrant and probable requirement because impracticality. e. Case in sylibus- not allow strip search-too intrusive. 2. Checkpoints-Michigan Dept. of Police v. Sitz-balancing problem of drunk driving v. minor intrusion from brief stop at sobriety checkpoint weigh in favor of state program. a. City of Indianapolis v. Edmond-checkpoint for drugsb. Ct. held that bc the checkpoint programs primary purpose was indistinguishable from the general interest in crime control, the chkpts violated the 4th am. We cannot sanction stops justified only by the ever present possibility that interrogation may real any given motorist has committed a crime. c. IL v. Lidster-Police stopped Lidster at a checkpoint set up to get hit and run accident information. Lidster was arrested for drunk driving. He appealed his conviction to IL Appellate Ct., which relied on Ind. V. Edmond holdthing that a checkpoint is unconstitutional if its only purpose is to uncover ordinary criminal wrongdoing. S. Ct. affirmed. --The Ill checkpoint did not violate the 4th am prohibition of unreasonable searches and seizure and was const. Ct. ruled that the checkpt was reasonable because it advanced a grave public interest-investigating a crime that had resulted in a human death-and interefered minimally with 4th am liberty. Distinguised information seeking checkpoint from crime control checkpoint struck down in Edmond. 3. Drug Testing-Recognizing the danger of drug and al abuse by railroad employees, the Fed. Rr Ad implemeented regluations requiring mandatory blood and urine test of employees involved in certain train accidents. Other FRA rules allowed rrs to administer breath and urine tests to employees who violated certain safety rules. a. Did regulation violate 4th am? b. No. Ct. held govts int in assuring safety on rrs constituted a special need which justified a departure from standard warrant and prob cause requ in searches. Preventing accidents, was such a significant concern that it warranted reduced expectation of privacy for rr workers. c. Chandler v. Miller-Under GA statute all candidates for state office must pass urinanalysis test within 30 days prior to qualifying for nomination or election. Chandler, on behalf of serveral st office nominees of Libertarian Pty challenged the
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statues constutionality. -Did GAs drug testing stature violate the 4th am guarnatee against illegal search and seizures? -Yes. Ct. noted that while 4th am generally prohibits officials from conducting search and seizures withone individualized suspicion, there does exist a narrowly defined category of permissible suspicionless searches and seaizures. Ct. Held, however, that GAs statute did not fall in this exceptional category since it failed to show why it desired to avoid drug useres in high pol offices should outweigh cands privacy interest. In addition to GAs failure to provide evidence of drug problem among state officials, ct. concuded that even if such a problem existed, the affected officials would most likely not perform the kind of high risk tasks which might justify the stas proposed incursion on their ind privacy rights. 4. Border Searches a. US v. Flories-Montano-Border guards found 37 kilos marijuana in gas tank at Mexican border. Flores charged for importing and possession of marijuanta w intent to distribute. FM argued that search that yielded the marijuana was intrusive and non routine and required reasonable suspicion. b. Does 4th am require customs officers to have reasonable suspicion in orer to disassemble gas tank for illegal material? c. No. Ct. held that gove. Had authority to inspect the vehicle at border wo suspicion. Though the 4th am protects property as well as privacy, inteference with gas tank is justified by the govts paramount interst in protecting the borderComplex balancing tests have no place in border searches of vehicles. Stop & FriskScope of Terry Stop- when do we cross line from temp stop to full seizureOfficer can only go into pockets if he believes a weapon---unless immediately appararent that there is contraband, then may arrest. Focus-Terry stop should only be long enough to dispel/confirm suspicion. **Time should be sufficiently reasonable-as long as situation requires. RULE: How long to stop? No per se rule, however, question ARE POLICE DILIGENTLY PURSUING THEIR INVESTIGATION? RULE: Place? If taken to station, need probable cause. US. V. Place-90 minute seizure of luggage not valid bc officers not acting diligently. Officer can take an object and wait for dogs based on reasonable suspicion for small amount of time to confirm/dispel, but must act diligently. Michigan v. Long-RS-under Terry, that criminal activity, may STOP, that armed and dangerous,
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may FRISK. Here weapon on person, search of car. Terry=minimal, here same scope as SILA bc can look anywhere a weapon may be-beyond Terry.. In Terry S. Ct. Only permitted search of person. Long, S. Ct. Held that principles outlined in Terry also apply reasonable suspicion that a passenger compartment and trunk of vehicle if the officer has a reasonable suspicion that a person may be armed and dangerous. Trunk during inventory search. RULE: If cop has reasonable suspicion that car has weapons which D can get, he may search, subsequently, can go into trunk to do inventory..if arrest. Length of time-acting diligently. Scope of frisk-pat down of outer clothes, squeezing exceeds scope, however, if immediately apparent, then PC & arrest, when arrest, can do full search. Extension of Terry: Place: adding of luggage Long: car-frisk of car, passenger compartment, person not being arrested. Penn v. Mimmis- iff off. Lawfully stops, may order them out of car. Minnesota v. Dickerson-Whether 4th am permits seizure of contraband detected through officers sense of touch during patdown? Beyond scope-looking for weapons, his continued exploration after determination of no weapon, not authorized by warrant exception Search of Home1. Need a warrant & then leave because search is over. 2. Buie- 2 parts to holdings a. Officer may automatically sweep all adjacent areas (looking for a person) b. Areas beyond immediately adjacent needs REASONABLE SUSPICION (always based on articulable facts) (PC not necessary to search home. Terry balacing for crime prevention-now govt. Interests beyond crime prevention.

Is it a seizure test? 1. Show of authority, or 2. Physical force....submit or come under control. For stops wo even reasonable suspicion, use: Brown v. TX factors (weight used in balancing
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1. States interest 2. Measure of intrusion-obj-(few minutes)- subj.-(not frightening, know about it.) 3. Effectiveness.... Checkpoints: must be 1. Limited, brief intrusion 2****must have guidelines. Edmond Test- What is purpose of program? Something other than general crime control. ***NOT OK for Crime prevention***OK for 1. Sobriety-Highway safety 2. License/registration-safety 3. Border test-secure borders.

Chapter 7-Due Process of Law & Confessions Common law-confessions by fear excluded bc unrealiable. I. Askcraft v. Tenn-1944-Wife killed, husband accused of hiring hitman-Police interrogated for 36 hours. a. Ct. Found: Const of US stands as bar against conviction by means of coerced confession. 36 hrs. Is inherently coercive b. Jackson-dissent-said fed. Ct. Should not supervise over state ct. in crim proceedings. If 36 hrs not permissible, 24? 12?6? 1? Interrogation not per se outlawed. c. Orthodox procedure-judge resolves evidentiary conflicts and makes her determination as to whether confession is voluntary. Spano v. NY-Spano shot guy mocking him, called friend who was officer, after arrainment, he continuedly asked for atty, but denied, then brought in friend who lied to him to get him to confense. a. Ct. found: deep rooted that police must obey law while enforcing law. b. Spanos will was overborne by official pressure, fatigue, false sympathy, trickery. Cannot deny right to counsel. Involuntary confession. c. Mincey-cannot interrogate in intensive care of hospital wo lawyer...involuntary Colorado v. Connelly- Confession, but was mentally unstable-mental state considered in voluntarism. .. a. Ct. held that coercisve police activity is necessary predicate to finding that a confession is not voluntary wi the meaning of Due Process of 14th a. b. Connelly significantly changed the voluntariness standard - the test used to determine the admissibility of confessions under the due process clauses of the Fifth and Fourteenth Amendments.[3] Before Connelly the test was whether the confession was voluntary considering the totality of the circumstances.[4] "Voluntary" carried its everyday meaning: the confession had to be a product of the
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II.

III.

exercise of the defendant's free will rather than police coercion.[5] After Connelly the totality of circumstances test is not even triggered unless the defendant can show coercive police conduct.[6] Questions of free will and rational decision making are irrelevant to a due process claim unless police misconduct existed and a causal connection can be shown between the misconduct and the confession. *should be evaluated for bias*. IV. CONSTITUTIONAL BASIS A. MIRANDA V. ARIZONA-19661. Holding-Prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 2. Prior to questioning, person must be warned that he has right to remain silent, that any statement he makes may be used as evidence against him, and that he has right to presence of atty. 3. D may waive rights, provided waiver is voluntary, knowlingly and intelligently. 4. Privilege against self incrimination...5th am privilege.

B. NY v. Quarles-1984-After receiving the description of Quarles, an alleged assailant, a police officer entered a supermarket, spotted him, and ordered him to stop. Quarles stopped and was frisked by the officer. Upon detecting an empty shoulder holster, the officer asked Quarles where his gun was. Quarles responded. The officer then formally arrested Quarles and read him his Miranda rights. 1. Should the Court suppress Quarles's statement about the gun and the gun itself because the officer had failed at the time to read Quarles his Miranda rights? 2. No. The Court held that there is a "public safety" exception to the requirement that officers issue Miranda warnings to suspects. Since the police officer's request for the location of the gun was prompted by an immediate interest in assuring that it did not injure an innocent bystander or fall into the hands of a potential accomplice to Quarles, his failure to read the Miranda warning did not violate the Constitution. 3. Balancing-We conclude the need for answers to questions in situation posing a thereat to public safety outweights need for prophylactice rule protecting 5th am privilege against self incrimination. C. Dickerson v. US-2000-In wake of Miranda, Congress enacted law which laid down a rule that admissibility of suspects statements made during custodial interrogation should turn only on whether they were voluntarily made. Ct. said it was not constitutional and did not overrule Miranda. 1. Prior to Miranda-admissibility of confession under voluntariness test.
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2. 2. Two yrs after Miranda, law conflict w. Miranda...law=totality of circumstances over Miranda warning requirements. D. Custody-Berkermer v. McCarthy-person stopped for misdeameanor traffic offence, once they are in custody, the protections of 5th am apply to them pursuant to Miranda. 1. The ct. however stated that roadside questioning pursuant to routine traffic stop does not constitute custodial interrogation. An ordinary stop curtails freedom of action, such pressures do not sufficiently impair privilege against self incrimination. 2. Holding: a.. Miranda applies to custodial interrogations involving minor traffic offenses. b. Routine questioning of motorists detained pursuant to traffic stops is not custodial interrogation under Miranda. c. A person who is subjected to custodial interrogation is entitled to Miranda warnings regardless of severity of crime, Questioning before arrest does not trigger right to Miranda warnings. d. Analysis-Roadside questioning during routine traffic does not constitute custodial interrogation per se. Detention for such a stop is presumptively temporary and brief, and public nature of stop means driver is not entirely at mercy of police. These factors suggest that a routine stop is less police dominated than the kind of station house interrogations that require warnings. E. Interrogation-RI v. Innis1.Murder of taxi driver-found unarmed, read Miranda several times, but police officers said handicapped children could find gun, Innis voluntarily confessed. 2. Issue: Did conversation bet officers mount up to custodial interrogation? 3. Holding: No. The ct first defined custodial interrogation..questioning initiated by officer after person has been taken into custody or deprived of his freedom of action in significant way. 4. Ct. went further and included words or action on part of officer that he should know are reasonably likely to elicit an incriminating response from suspect. 5. Two prng: 1. Questioning 2. Funct. Equivalent of questioning (should know will illicit incriminating response.
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E. IL v. Perkins-While held in jail, Perkins freely confessed to committing a murder to undercover officer posing as inmate. 1. Did officer violate Miranda rights as protected by 5th and 14th Am? 2. No. Ct. held conversations bet suspect and officer are not afforded Miranda protection since they are not done in a police dominated atmosphere where compulsion to confess is present. It is the premise of Miranda that the danger of coercion result from the interaction of custody and official interrogation. There was no danger of coercion in this case. F. Waiver-S.C. v. Butler- Buter, while under arrest for certain crimes and given Miranda, made incriminating statements to officers. His motion to suppress evidence of these statements on ground that he had not waived his writght to counsel at time of statement. Denied by t ct, conviceted. NC S Ct. reversed, holding Miranda must have explicitly waived right to lawyer. 1. S Ct. held: explicit statement of waiver is not necessary to support finding that d waived right to counsel. 2. Question of waiver must be determined on the particular facts and circumstances surrounding case, and there is no reason in this case for per se rule. 3. By creating inflexible rule that no implicit waiver can eer suffice, that ct went beyond requirements of fed organic law. Ct cannot add or subtract to US Cons. G. CO v. Spring-D arrested for firearm violation, received Miranda, signed waiver & said willing to answer questions. D didnt know tip that he was involved in unrelated murder. Agents asked if he had crim record, asked if ever shot anyone. D made incriminating statement that was admitted at trial. D argued invalid waiver bc police failed to tell him the subject of interrogation would include the homicide. 1. Holding: Holding: suspects awareness of all crimes about which he could be questioned not relevant in determining validity of waiver of 5th a priviledge against self incrimination, and therefore the failure to inform d of subject matter of interrogation could not have affected his decision to waive the privilege.

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H. Berghuis v. Thompkins- the Court reasoned that Mr. Thompkins failed to invoke his Miranda rights to remain silent and to counsel because he failed to do so "unambiguously." Moreover, the Court reasoned that Mr. Thompkins waived his Miranda right to remain silent when he "knowingly and voluntarily" made a statement to the police. The Court further held that, even if Mr. Thompkins' counsel was ineffective, he cannot show he was prejudiced by counsel's deficient performance a prerequisite to establishing that his Sixth Amendment right was violated. If asks for attorney, then: 1. Must have atty present, or 2. Suspect initiates the communication. If suspect says, Whats going to happen to me now? 5 judges said VALID waiver. However, statements like, Can I have water? is NOT initiation.

I. Invocation of Protections-Michigan v. Mosleya. The defendant moved to suppress his incriminating statement, asserting that under the Miranda decision, it was impermissible for the second officer to question him about the murder after he had refused to answer the first officer's questions about the robberies, c. ISSUES: Whether once a D exercises his right to remain silent, may he later be interrogated on another subject as long as reasonable time has passed and a new warning given. d. HOLDING: Once a D exercises his right to remain silent, he may later be interrogated on another subject as long as reasonable time has passed and a new warning given. J. Edwards v. Arizona-Edwards; the petitioner was charged with robbery. A warrant was issued and Edwards was arrested. After Edwards was read his Miranda warnings, he immediately requested for a lawyer. The next morning, two detectives went to question Edwards without the presence of his attorney and they obtained a confession out of the petitioner. 1. Issue: Can the confession of Edwards be admitted as evidence? 2. Holding: No According to Miranda v. Arizona, all police interrogation should stop when a person requests for an attorney. If an officer starts a conversation with the defendant which according to a reasonable officer is likely to result in the defendant making incriminating statements, then that conversation will be considered police interrogation. Unless the defendant
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voluntarily intiates the conversation, all other questioning will be seized after a defendant asks for the assistance of a counsel. Invocation 1. Davis v. US-Davis, a member of the United States Navy, murdered another naval officer when he refused to pay a $30 debt that was incurred by losing a game of pool. The victim was beaten to death with a pool cue. Only personally-owned pool cues could be taken from the pool hall and Davis owned two pool cues. Naval investigators found blood on Davis's pool cue and several people stated that they had heard Davis confess to the murder. Davis was taken into custody by Naval investigators and read his rights under Miranda. Davis confessed during the interrogation and then made an ambiguous request for an attorney by saying, "Maybe I should talk with an attorney." The investigators asked him if he did want one and he said, "No." The Supreme Court ruled that an ambiguous and unclear request for an attorney does not establish the right. The reasoning was that the defendant's rights under Edwards were not sufficiently requested under these facts. The request for an attorney must be clear and unambiguous. 2. Minnick v. Miss- Minnick was arrested on a Mississippi warrant for capital murder. An interrogation by federal law enforcement officials ended when he requested a lawyer, and he subsequently communicated with appointed counsel two or three times. Interrogation was reinitiated by a county deputy sheriff after Minnick was told that he could not refuse to talk to him, and Minnick confessed. The motion to suppress the confession was denied, and he was convicted and sentenced to death. The State Supreme Court rejected his argument that the confession was taken in violation of, inter alia, his Fifth Amendment right to counsel, reasoning that the rule of Edwards v. Arizona, 451 U.S. 477 - that once an accused requests counsel, officials may not reinitiate questioning "until counsel has been made available" to him - did not apply, since counsel had been made available. a. Held: When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. In context, the requirement that counsel be "made available" to the accused refers not to the opportunity to consult with an attorney outside the interrogation room, but to the right to have the attorney present during custodial interrogation. This rule is appropriate and necessary, since a single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights and from the coercive pressures that accompany custody and may increase as it is prolonged.

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Chap. 10- Confessions and the Right to Assistance of Counsel

Massiah v. U.S- Rule of Law. Suspect is denied the basic protections of the [Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of
his counsel. a. Facts. Petitioner Massiah, a merchant seaman, along with a conspirator Colson, were indicted for narcotics offenses. Both pled not guilty and were released on bail. Colson, without petitioners knowledge, decided to cooperate with the government. He permitted agents to place a radio transmitter under the seat of his car, by which agents could hear conversations in the car. Colson and the petitioner met in the car, and were overheard by an agent. The petitioner made several incrimination statements during the conversation.

b. Issue. Whether the petitioners . . . Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited from him after he had been indicted and in the absence of his retained counsel. c. Yes. The Supreme Court used the previous Spano rule. The Court did not question that in this case . . . it was entirely proper to continue an investigation of the petitioner. It simply held that the defendants own incriminating statements, obtained by federal agents under [these] circumstances . . ., could not constitutionally be used by the prosecution as evidence against him at his trial. d. The Massiah rule applies to the use of testimonial evidence in criminal proceedings deliberately elicited by the police from a defendant after formal charges have been filed.

e. The events that trigger the Sixth Amendment safeguards under Massiah are: (1) the commencement of adversarial criminal proceedings and (2) deliberate elicitation of information from the defendant by governmental agents.
2. Maryland v. Shatzer, No. 08-680 (2010),[1] was a case in which the Supreme Court of the United States held that police may re-open questioning of a suspect who has asked for counsel (thereby under Edwards v. Arizona ending questioning) if there has been a 14-day or more break in Miranda custody. The ruling distinguished Edwards, which had not specified a limit.

3. Brewer v. Williams-10 yr. old girl killed by escapee of mental hospital. Atty in city where caught and in city where to be triedridetold not to speakpolice played on his weaknessChristian burial a. Rule: Once judicial proceedings begin, the Sixth Amendment to the United States Constitution (the Constitution) dictates that the suspect has a right to counsel. b. The definition of interrogation here is very broad compared to a case decided a few years later, Rhode Island v. Innis. The important factors in this case were the timing of the interrogation (after a judicial proceeding), the definition of interrogation, and whether the right to counsel was knowingly and voluntarily waived.
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4. Patterson v. Illinois-Held: The postindictment questioning that produced petitioner's incriminating statements did not violate his Sixth Amendment right to counsel. a) Petitioner cannot avail himself of the argument that, because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating questioning, since he at no time sought to have counsel present. The essence of Edwards v. Arizona, and its progeny, on which petitioner relies, is the preservation of the integrity of an accused's choice to communicate with police only through counsel. Had petitioner indicated he wanted counsel's assistance, the questioning would have stopped, and further questioning would have been forbidden unless he himself initiated the meeting. Michigan v. Jackson, However, once an accused "knowingly and intelligently" elects to proceed without counsel, the uncounseled statements he then makes need not be excluded at trial. (b) Petitioner's contention that his Sixth Amendment rights were violated because he did not "knowingly and intelligently" waive his right to have counsel present during his postindictment questioning is without merit. The constitutional minimum for determining whether a waiver was "knowing and intelligent" is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel. Here, by admonishing petitioner with the Miranda warnings, respondent met this burden, and petitioner's waiver was valid. (c) This Court has never adopted petitioner's suggestion that the Sixth Amendment right to counsel is "superior" to or "more difficult" to waive than its Fifth Amendment counterpart. Rather, in Sixth Amendment cases, the court has defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular stage of the proceedings in question, and the dangers to the accused of proceeding without counsel at that stage. An accused's waiver is "knowing and intelligent" if he is made aware of these basic facts. Miranda warnings are sufficient for this purpose in the postindictment questioning context, because, at that stage, the role of counsel is relatively simple and limited, and the dangers and disadvantages of self-representation are less substantial and more obvious to an accused than they are at trial.

5. Texas v. Cobb-held that the Sixth Amendment right to counsel is offense-specific and does not always extend to offenses that are closely related to those where the right has been attached. This decision reaffirmed the Court's holding in McNeil v. Wisconsin (1991) by concluding that the Sixth Amendment right to counsel attaches at the onset of adversarial proceedings. 6. US v. Henry-Respondent's statements to the informant should not have been admitted at trial. By
intentionally creating a situation likely to induce respondent to make incriminating statements without the assistance of counsel, the Government violated respondent's Sixth Amendment right to counsel. Under the facts - particularly the facts that the informant was acting under instructions as a paid informant for the Government while ostensibly no more than a fellow inmate, and that respondent was in custody and under indictment at the time - incriminating statements were "deliberately elicited" from respondent within the meaning of Massiah. Since respondent was unaware that the informant was acting for the Government, he cannot be held to have waived his right to the assistance of counsel -

a. Proof that state must have known that its agent was likely to obtain incriminating statement from the accused in absence of counsel was enough to establish 6th a violation.

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b. Rule: the Supreme Court defined deliberate elicitation in terms of whether the officers intentionally creat[ed] a situation likely to induce Henry to make incriminating statements without the assistance of counsel 7. Main v. Moulton-Ct. dealt w case similar to Massiah. D indicted on theft, co-defendant met to pla upcoming trial. Moulton suggested possibility of killing witness. Colson met w police and agreed to deal. Colson met w wire. a. Govt argued distinguishable from Massiah bc 1. D initiated meeting and 2. Ploice had legitimate reasons for listening. b. Ct. said 1. The id of party who instigates was not decisive or important to Massiah decision. After initial formal charges knowing exploitation by state of confronting accused wo counsel present is breach of state obligation. c. In Massiah govt had said it had right , if not duty, to continue their investigation. Moulton ct. reaffirmed that incriminating statements pertaining to pending charges are inadmissible, even if police investigating other crimes. 8. Kuhlmann V. Wilson-An informer planted in a suspects jail cell obtained incriminating information from a suspect after being told not to start the conversation, but to listen for incriminating information. a. Rule of Law. When police plant an informer with a jailed suspect and the informer does not ask questions, the suspects statements to the informer are admissible unless the informer took coercive steps other than listening to elicit incriminating information b. The Sixth Amendment is not violated when the state obtains incriminating statements from the accused by luck or happenstance after the right to counsel has attached. To demonstrate a valid Miranda claim, the defendant must have shown more than mere listening on the part of the informant. Here, there were no such actions shown. 9. Fellers v. US-cops went to Fs home and told him they had to discuss his involvement with meth distributions. F told them he knew the people and had used meth w them. Took to jail, warned of rights, got waiver. a. Ct. said because F had been indicted, question was whether a govt agent deliberately elicited incriminating statement wi meaning of Massiah. Ct. concluded that cop deliberately elicited info by informing him that their purpose was to discuss distribution of meth. b. Deliberate elicitation is defined as the intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant.[6] Clearly express questioning (interrogation) would qualify but the concept also extends to surreptitious attempts to acquire information from the defendant through the use of undercover agents or paid informants.[7] The definition of "deliberate elicitation" is not the same as the definition of "interrogation" under the Miranda rule. Miranda interrogation includes express questioning and any actions or statements that an officer would reasonably foresee as likely to cause an incriminating response. Massiah applies to express questioning and any attempt to deliberately and intentionally obtain incriminating information from the defendant regarding the crime charged. The difference is
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purposeful creation of an environment likely to produce incriminating information (Massiah) and action likely to induce an incriminating response even if that was not the officer's purpose or intent (Miranda). 9. Montejo v. LA-The Supreme Court overruled its prior decision in Michigan v. Jackson which held that evidence obtained through interrogation after the defendant has invoked his right to counsel was inadmissible. a. The Fifth Amendment's right to counsel attaches upon invocation (i.e. when an attorney is requested). b. The Sixth Amendment's right to counsel attaches when adversarial proceedings begin (i.e. at the arraignment). The presumption in Jackson attempted to analogize the Fifth Amendment's right against self-incrimination through Edwards v. Arizona (a rule forbidding police initiation of communications if accused clearly requested counsel for purposes of interactions w police) to the Sixth Amendment's right to counsel. Essentially not allowing police interrogation after the right attached. c. Under Montejo, in the case where the Defendant has not asserted his Fifth Amendment's right to counsel but rather relies on his Sixth Amendment's right to counsel, police may reinitiate interrogation after his Miranda rights have been read. However, if a Defendant has asserted his Fifth Amendment's right to counsel and adversarial proceedings have begun, police may not reinitiate questioning without counsel present and waiver under Edwards, or unless the Defendant initiates the conversation and police get waiver. 10. Rothgery v. Gillespie County, TX- Arrested, initial appearance, not appointed counsel for 6 months, after indicted. ..alleged right to counsel attaches upon initial appearance, if not violation of 6th Am. a. Court held that a criminal defendant's initial appearance before a judge marks the beginning of the proceedings against him and triggers the defendant's Sixth Amendment right to counsel whether or not a prosecutor is aware of or involved in that appearance. b. This right to counsel applies whenever a defendant learns of the charges against him and has his liberty subject to restriction.

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I. Exclusionary RuleA. Sources & Rationales- Weeks v. Us. the United States Supreme Court unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment.[1] It also prevented local officers from securing evidence by means prohibited under the federal exclusionary rule and giving it to their federal colleagues. It was not until the case of Mapp v. Ohio(1961)that the exclusionary rule was deemed to apply to state courts as well. 1. Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. 2. the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule." B. Mapp v. Ohio- landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as federal courts. 1. Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. 2. The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.

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C. Independent Source, Inevitable Discovery-Silverthorne Lumber v. US- Silverthorne attempted to evade paying taxes. Federal agents illegally seized tax books from Silverthorne and created copies of the records. 1. The issue in this case is whether or not derivatives of illegal evidence are permissible in court. The ruling was that to permit derivatives would encourage police to circumvent the Fourth Amendment, so the illegal copied evidence was held tainted and inadmissible. 2. This precedent is known as fruit of the poisonous tree and is an extension of the exclusionary rule. 3. The court established the fruit of the poisonous tree rule in which good evidence, if obtained illegally, cannot be used against the defendant. This is an extension of the exclusionary rule. 4. fruit of the poisonous tree doctrine, which prohibits the government from using evidence derived from conduct that violates the Fourth Amendment or other provisions of the constitution. Thus, the exclusionary rule remedy applies not only to the direct fruits (evidence) obtained by unconstitutional means, but also to all other evidence subsequently derived from it. The court found this rule was needed because without it the Fourth Amendment in anticipation of developing subsequent evidence that could be admitted at trial. If this was permitted it would defeat the purpose of the individuals rights as well as the exclusionary rule. D. Murray v. US Two agents trailing the petitioner forced entry into a warehouse containing the
petitioners vehicle. They discovered marijuana. Subsequently, they returned with a warrant. 1. Rule of Law. The independent source doctrine applies . . . to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality.

2. The court applied the independent source rule formulated in Segura, permitting evidence found independently, despite an improper search. In the present case, knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if the later acquisition was not the result of the earlier entry, there is no reason why the independent source doctrine should not apply. This was applied to the tangible evidence: the bales. However, the court was uncertain as to whether the search pursuant to the warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. The agents did not reveal the original search to the magistrate issuing the warrant. Thus, they remanded to the Court of Appeals with instructions that it remand to the District Court for determination whether the warrant-authorized search of the warehouse was an independent source of the challenged evidence in the sense [the court] described. a. The Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if that evidence is also
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discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry b. The "independent source" doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States . There is no merit to petitioners' contention that allowing the doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant. c. Although the federal agents' knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described. E. Nix v. Williams- Williams was arrested for the murder of a ten-year-old girl who's body he disposed of along a gravel road. State law enforcement officials engaged in a massive search for the child's body. During the search, after responding to an officer's appeal for assistance, Williams made statements to the police (without an attorney present) which helped lead the searchers to the child's body. The defendant's Miranda rights were only read to him after his arrest. 1. Should evidence resulting in an arrest be excluded from trial because it was improperly obtained? 2. No. The Court relied on the "inevitable discovery doctrine," as it held that the exclusionary rule did not apply to the child's body as evidence since it was clear that the volunteer search teams would have discovered the body even absent Williams's statements. 3. Rule of Law. This case introduces the inevitable discovery doctrine, which postulates that if evidence will be inevitably discovered, the method in which it is obtained is not important 3. The core rationale for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct is that such course is needed to deter police from violations of constitutional and statutory protections notwithstanding the high social cost of letting obviously
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guilty persons go unpunished. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired. 4. By contrast, the independent source doctrine - allowing admission of evidence that has been discovered by means wholly independent of any constitutional violation - rests on the rationale that society's interest in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. 5/ Although the independent source doctrine does not apply here, its rationale is wholly consistent with and justifies adoption of the ultimate or inevitable discovery exception to the exclusionary rule. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means - here the volunteers' search - then the deterrence rationale has so little basis that the evidence should be received.

E. Attenuation 1. Wong Sun v. US-decision excluding the presentation of verbal evidence and recovered narcotics where they were both fruits of an illegal entry. A. FactsNarcotics agents unlawfully entered Toy's laundry at which point Toy indicated that Yee was selling narcotics. The drug agents then went to Yee and found the narcotics. Yee made a deal to give up his supplier, Wong Sun. Wong Sun was a prominent businessman, so the police invited him for a conversation about the case. Following this conversation, Wong Sun voluntarily returned to the police station to make a deal of his own, during the process of which he confessed. B. At Yee's trial, Toy's statements and the discovered drugs were both excluded as fruit of the poisonous tree because the search was done without a warrant. Wong Sun's lawyer argued that Wong Sun's confession should also be excluded as fruit of the poisonous tree. C. The court affirmed the fruit of the poisonous tree rule, but found an exception to exclusion in Wong Sun's case on the grounds that Wong Sun had voluntarily returned to the police station to make his statement, an act which had "become so attenuated as to dissipate the taint" or broke the chain of inadmissible evidence. Wong Sun was granted a new trial, but his confession was admissible. 2. Brown v. Illinois-Suspect was arrested without probable cause, given Miranda twice, and confessed to murder twice.
A. Rule of Law. Miranda warnings by themselves, [do not] assure that . . . statements . . . [are] of sufficient free will as to purge the primary taint of . . . unlawful arrest. 31

3. Hudson v. Michigan- holding that a violation of the Fourth Amendment requirement that police officers knock, announce their presence, and wait a reasonable amount of time before entering a private residence (the knock-and-announce requirement) does not require suppression of the evidence obtained in the ensuing search. a. On the afternoon of August 27, 1998, Officer Jamal Good and six other Detroit police officers arrived at the residence of Booker T. Hudson to execute a warrant authorizing a search of Hudson's home for drugs and firearms. Several officers shouted "police, search warrant," but then as was Officer Good's policy in drug cases, waited only "three to five seconds" before entering Hudson's home through the unlocked front door. b. Immediately upon entering, the officers found Hudson sitting on a chair in the living room while numerous other individuals were running about the house. In the ensuing search, the police found five rocks of crack cocaine weighing less than 25 grams inside Hudson's pants pockets. In addition, a plastic bag containing 23 individual baggies of crack and a loaded revolver were found on the chair upon which Hudson was sitting and a plastic bag containing 24 individual baggies of cocaine was found on the living room coffee table. c. At Hudson's trial for cocaine possession with intent to delive and possession of a firearm during the commission of a felony, Hudson argued thatsince the premature entry violated the knock-and-announce requirement and, therefore, according to the Supreme Court's decision in Wilson v. Arkansas[4] his Fourth Amendment right to be free from unreasonable searches and seizuresthe exclusionary rule required that the evidence obtained in the ensuing search must be suppressed. At the evidentiary hearing on the suppression motion, the prosecutor conceded that the police had violated the knock-and-announce requirement, and the trial judge granted petitioner's motion to suppress. d. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible "deterrence benefits," 4. Oregon v. Elstad- Elstad was suspected of committing a burglary and was picked up by police officers in his home. Before officers had given the warnings required by Miranda v. Arizona, Elstad made an incriminating statement. Once at the Sheriff's headquarters, Elstad was advised of his rights. Elstad then voluntarily executed a written confession. a. Was Elstad's written confession made invalid by the failure of the officers to administer Miranda warnings at his home? In a 6-to-3 decision, the Court held that while Miranda required that unwarned admissions must be suppressed, subsequent statements, if made knowingly and voluntarily, need not be. The Court held that ". . .the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion." The Court also noted that police officers were ill-equipped to determine when "custody" legally begins. Justice O'Connor, writing for the majority, argued that the holding "in no way retreat[ed] from the bright-line rule of Miranda."
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5. Missouri v. Seibert-Patrice Seibert was convicted of second degree murder for the death of 17 -year-old Donald Rector, who died in a fire set in the mobile home where he lived with Seibert. Several days after the fire, Seibert was interogated by a police officer. The officer initially withheld her Miranda warnings, hoping to get a confession from her first. Once she had confessed, the officer took a short break from questioning, then read her her Miranda rights and resumed questioning her after she waived those rights. He prompted her to restate the confession that she had made earlier. Based on this second, Mirandized confession, Seibert was convicted. She appealed, charging that the officer's intentional use of an un-Mirandized interrogation to get the initial confession made the later confession, though it occurred after she had waived her Miranda rights, inadmissable. The prosecution cited Oregon v. Elstad to argue that an initial, un-Mirandized confession did not make a defendant incapable of voluntarily waiving her Miranda rights and confessing later. The Supreme Court of Missouri agreed with Seibert, overturning the conviction. a. Does the rule from Oregon v. Elstad that a defendant who has made an unMirandized confession may later waive her Miranda rights to make a second confession (admissible in court) still apply when the initial confession is the result of an intentional decision by a police officer to withhold her Miranda warnings? b. No. In a decision with no majority, a four-justice plurality found that the post-Miranda confession is only admissible - even if the two-stage interview was unintentional, as it was in Elstad - if the Miranda warning and accompanying break are sufficient to give the suspect the reasonable belief that she has the right not to speak with the police. Justice Anthony Kennedy, in a concurring opinion that provided the fifth vote, found that evaluating the warning and accompanying break was only necessary if the police used the two-stage interrogation intentionally. Justice Kennedy wrote, "The admissibility of postwarning statements should continue to be governed by Elstad's principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made." 6. US v. Patane-Samuel Patane was arrested in front of his home for calling his ex-girlfriend in violation of a restraining order. During the arrest, police officers began reading Patane his Miranda rights. Patane told the officers that he knew his rights. The officers then stopped reading them, at which point Patane told police that he had a gun in his house. They searched the house with his permission and found the gun. As an ex-felon, Patane was not permitted to possess a gun and was prosecuted for possession. During the trial on gun possession charges, Patane argued that his arrest violated the Fourth Amendment prohibition of unreasonable searches and seizures and the Fifth Amendment right not to incriminate oneself because there was not probable cause to arrest him and because the gun had been found as a result of an un-Mirandized confession.

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The district court initially ruled that there was not probable cause for his arrest and that it was therefore unconstitutional. A 10th Circuit Court of Appeals panel disagreed, holding that Patane's ex-girlfriend had given police probable cause for the arrest. However, the panel held that the gun could not be used as evidence because it had been found as the result of an un-Mirandized (and therefore unconstitutional) confession. The government appealed, arguing that physical evidence found as the result of un-Mirandized testimony could be used in court, despite the fact that the testimony itself was inadmissible. a. Whether a failure to give a suspect the warnings prescribed in Miranda v. Arizona requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement. b. In a decision without a majority opinion, three justices wrote that the Miranda warnings were merely intended to prevent violations of the Constitution, and that because Patane's un-Mirandized testimony was not admitted at trial the Constitution (specifically the Fifth Amendment's protection against self-incrimination) had not been violated. Physical evidence obtained from un-Mirandized statements, as long as those statements were not forced by police, were constitutionally admissible. Two other justices also held that the physical evidence was constitutionally admissible, but did so with the understanding that the Miranda warnings must be accommodated to other objectives of the criminal justice system. They did not discuss whether the Miranda warnings were, in themselves, constitutionally required.

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I.

US. V. Leon

The exclusionary rule requires that evidence illegally seized must be excluded from criminal trials. Leon was the target of police surveillance based on an anonymous informant's tip. The police applied to a judge for a search warrant of Leon's home based on the evidence from their surveillance. A judge issued the warrant and the police recovered large quantities of illegal drugs. Leon was indicted for violating federal drug laws. A judge concluded that the affadavit for the search warrant was insufficient; it did not establish the probable cause necessary to issue the warrant. Thus, the evidence obtained under the warrant could not be introduced at Leon's trial. Is there a "good faith" exception to the exclusionary rule?
Legal provision: Exclusionary Rule (admissibility of evidence allegedly in violation of the Fourth Amendment)

Yes, there is such an exception. The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge. II. Mass. V. Sheppard Boston police sought to obtain a warrant to search the home of Osborne Sheppard, a suspected murderer. Detective Peter O'Malley prepared an affidavit listing the pieces of evidence he hoped to find at Sheppard's home. Since the local court was closed for the weekend and O'Malley could not find a new warrant form, he filled out a previously used form instead. He took this form and the affidavit to the residence of the presiding judge and told him the form required revision and approval. The judge returned the form with his approval, but he did not list the pieces of evidence from the affidavit on the warrant. Police found items from the affidavit in Sheppard's home and charged him with first-degree murder. During Sheppard's trial, the judge stated that the warrant did not conform to Fourth Amendment standards because it did not describe the items to be seized. Because the police acted in good faith upon what they believed was a valid warrant, the judge admitted the items as evidence and Sheppard was convicted. On appeal to the Supreme Judicial Court of Massachusetts, Sheppard successfully argued that the trial judge should have suppressed the evidence since no "good-faith exception" existed for admitting evidence obtained on a faulty warrant. Question If police officers mistakenly believe they have obtained a valid warrant, can a trial court use the evidence they obtained?
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Legal provision: Exclusionary Rule (admissibility of evidence allegedly in violation of the Fourth Amendment) Yes. Justice Byron White delivered the opinion for a 7-2 court. The Court maintained that trial courts can use evidence seized by officers who have an "objectively reasonable basis" for mistakenly believing they have obtained valid warrants. Upon a factual inquiry, the Court found that "the officers in this case took every step that could reasonably be expected of them" to secure a valid warrant. Lawmakers did not enact rules for excluding evidence to invalidate evidence because of clerical errors by judges but to deter police from conducting unlawful searches. III. Herring v. US The Coffee County, Alabama Sheriff's Department apprehended Bennie Herring in July of 2004. Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty arrest warrant. The warrant, still active in the neighboring Dale County Sheriff's Office, was supposed to have been recalled five months prior, however someone had accidentally failed to remove it from the computer system. Herring filed a motion to suppress the allegedly "illegally obtained" evidence, however the U.S. District Court for the Middle District of Alabama denied Herring's motion and sentenced him to 27 months in prison. The U.S. Court of Appeals for the Eleventh Circuit affirmed the conviction, stating that illegally obtained evidence should only be suppressed when doing so could result in appreciable deterrence of future police misconduct. In his petition for certiorari, Herring pointed to an Arkansas case with nearly identical facts that had come out the other way, noting that as policing becomes ever more reliant on computerized systems, the number of illegal arrests and searches based on negligent recordkeeping is poised to multiply." The Court granted certiorari on February 19, 2008.
Question

Does a court violate the Fourth Amendment rights of a criminal defendant by introducing evidence obtained through a police search based on an arrest warrant that should have been recalled, but was negligently allowed to remain active, at the time of the search? No. In a 5-4 decision with Chief Justice John G. Roberts writing for the majority and joined by Justice Antonin G. Scalia, Justice Anthony M. Kennedy, Justice Clarence Thomas and Justice Samuel A. Alito Jr., the Supreme Court affirmed the U.S. Court of Appeals for the Eleventh Circuit. 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. Justice Ruth Bader Ginsburg dissented and was joined by Justice John Paul Stevens, Justice David H. Souter, and Justice Stephen G. Breyer. Justice Ginsburg argued that an intact exclusionary rule
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provides a strong incentive for police compliance with respect to the Fourth Amendment and its erosion in this case was not warranted. Justice Breyer also filed a separate dissenting opinion and was joined by Justice Souter. He argued that the Court should move away from its reliance on analyzing the degree of police culpability when determining whether the exclusionary rule applies, but rather draw a bright line between errors made by record keepers and those made by police officers.

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