COURSE OVERVIEW
Structure of the Cases:
You will read a seminal case (like Terry v. Ohio) and then you’re read various cases that have interpreted that case. The law is that seminal case and all the subsequent cases give the big picture.
What This Class Is About:
How the Constitution restricts what police can and can’t do.
What a prosecutor can and can’t do.
Fourth (8 weeks), Fifth (2-3 weeks), Sixth (2-3 weeks) and Fourteenth Amendment to the Constitution.
Judicial Restraint: Traditional, conservative approach. No interference with the executive and legislative branches of government. Only overrule if they have violated the Constitution
Comity (Federalism): The Federal Government should defer to the states unless there is a clear violation of the Constitution.
Liberal Approach: The Constitution is a living, breathing document and should look to the spirit of the document. The Constitution needs to change with our society.
Judicial Activism: Protect those who are not protected.
Case by Case Approach: No specific philosophy, very pragmatic. What’s going to work to solve this particular problem?
Economics and Social Policies: How a decision going one way will result in a huge increase in cases and it will cost the system a lot of money. Sometimes it’s political or technological – how far will technology take the government into people’s homes.
Lesson’s Learned in a Courtroom:
1. Stand up when called upon;
2. Speak clearly in an intelligible voice;
3. Know the rules in your given jurisdiction, preparedness;
4. Lawyer’s Robes: Wear a suit. Dress in a lawyerly manner so that you don’t insult the integrity of court;
5. Answer questions from the judge directly; and
6. Identify potential issues such as conflicts of interest.
PROCEDURAL STEPS IN A CRIMINAL CASE
The reported crime: The police have to find out about it. No crime, no investigation and the Constitution has no effect on what they do.
PRE-ARREST INVESTIGATION
On the scene investigations Terry v. Ohio
a) Stop and frisk
b) Border searches
Reactive Investigation: A crime has occurred and the police are responding.
Example: A bank robbery has occurred and the police arrive at the scene after the bank robbers have left – what do they do while they are there.
Proactive Investigation (Undercover Investigations):
Example: A wiretap is basically seizing the conversation that implies a privacy concern that is directly addressed in the Constitution.
Prosecutorial Investigations: Where the prosecutor gets involved by helping to get a search warrant.
ARREST
An arrest can occur with a warrant which is covered by the Fourth Amendment or without a warrant.
Plain View Seizures: If drugs are in plain view can you take them?
Inventory Searches: If illegal items are found subsequent to an impounded vehicle search can they use those items?
Consent Searches: Knowingly, intelligently and voluntarily waiving a right and giving consent to search.
BOOKING
Can police officers ask you questions while under arrest during booking? There is a bookings question exception. You can ask booking questions and Miranda does not apply to routine booking matters.
POST-ARREST INVESTIGATIONS
The case is not complete.
Search Warrants
Warrantless Search: A search based upon a permissible purpose such as an emergency.
When do you have to read Miranda in order to gain what someone says to be admissible?
What if the person requests an attorney?
THE DECISION TO CHARGE
Investigator Screening: At some point in time the investigator has got to make a decision to bring the matter to the prosecutor or the magistrate for an arrest warrant approval or complaint approval. Investigators will often screen out cases. If they decide that it’s not a good enough case to bring forward, they don’t even bring it to the prosecutor or the judge.
Prosecutor Screening: There may be a system where the investigator has to bring it to the prosecutor first and the prosecutor will screen the case. A prosecutor can exercise his or her discretion depending on policy.
FILING OF THE COMPLAINT
The complaint can be another stage where the prosecutor can screen cases.
FIRST APPEARANCE ON THE COMPLAINT
The judge is involved and the requirements under the Constitution seem to go up. We now have the Sixth Amendment applying – adversarial judicial criminal proceedings. The court will decide if the person should be released on bond or held because he or she is a flight risk or a danger to the community.
PRELIMINARY HEARING
The probable cause hearing. This is where the prosecutor has to establish thru testimony that there is probable cause that this particular person committed the crime and that the person should be bound over and held for the next stage of the criminal proceedings. Both the federal and the state systems have preliminary hearings but it is more frequent for a state to have a preliminary hearing. The reason for that is because most states do not have grand juries.
GRAND JURY PROCEEDINGS
The Fifth Amendment controls the grand jury. The Supreme Court has decided that a right to a grand jury indictment is not a fundamental right under the Constitution. The states are not required to have a grand jury system. The federal system does because it is a right under the Constitution. If a state does not have a grand jury system they will use preliminary hearings.
FILING INDICTMENT OR INFORMATION
The indictment is the document that is issued by the grand jury after they have made an independent and separate determination that there is probable cause and a particular person committed a crime.
ARRAIGNMENT ON INFORMATION OR INDICTMENT
After the document is filed you are arraigned and you again go back again in front of the court. The court may ask how you plead but generally for setting a date to hear motions.
PLEA HEARINGS
Most cases are resolved at this step by way of a plea.
PRETRIAL MOTIONS
In addition to plea hearings there are pretrial motion hearings. Sometimes these pleas can be contingent upon a defendant wanting to exercise his or her right for a motion to be heard. Often these motions are waived by a defendant who is willing to plead guilty. The motions are generally where a defense attorney says that he doesn’t want evidence that the government says that they have to come in to play based upon the Constitution. The argument is this evidence should be suppressed because the police violated the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment – some way. The prosecutor is going to file a response to that motion to suppress saying that the law was complied with and we want the court to interpret the law in the broadest way possible and even though the police may have been very aggressive in their pursuit of the evidence, what they did was consistent with the law.
That’s what this class is about. It’s all about the evidence and the defense attorney not wanting it in and the prosecutor wanting it in. Both are trying to uphold the law and both want the courts to interpret the law in their own unique way.
TRIAL
Impeachment Evidence: When can evidence that has previously excluded by the court because the court said there was a violation of this rule or that rule? Can it come up if the defendant takes the stand and says something inconsistent with the evidence that was excluded? Can it be used for impeachment purposes?
Effective Assistance of Counsel: Under the Sixth Amendment was the defendant effectively represented by his counsel? Does he have a right to an attorney at the trial? If so when?
SENTENCING
We don’t really cover sentencing in this class.
DIRECT APPELLATE REVIEW
How does a case get to the Supreme Court? Most of our cases will be Supreme Court cases.
In order for the Supreme Court to consider a case is has to be a Constitutional issue. If it’s a state issue and it does not involve the United States Constitution, they are not going to look at it at all.
Habeas Corpus: Another way to get in front of the Supreme Court is a person who has been incarcerated for sometime can reargue the constitutional issues. Basically what they say is that I am being held in violation of the US Constitution.
SUPREME COURT SUPERVISORY AUTHORITY
The Supreme Court can’t just tell a state court what to do because they don’t like what the state did. It has to be something that involves the US Constitution. The Supreme Court does not have a supervisory power over the state criminal justice system. They do have power over the state under the Constitution:
Contrast this with the authority over other Federal Courts:
The justices in McNabb were troubled because people were being arrested and there was a statute that said when you are arrested, the federal agent has to take you before the nearest available federal magistrate without unnecessary delay. While the statute required that, there was no remedy for it. There is nothing in the statute that says what you can do if someone violated the statute. The Court didn’t like that so they exercised their supervisory authority for confessions.
Today the scope of the supervisory authority is not very clear. In the Payner case it makes it clear that the supervisory power is not necessarily something that is a clearly articulated rule. It exists but it is not always clear
Payner’s constitutional rights were not violated because it wasn’t his briefcase. Even though there is an arguable constitutional violation, he’s without a remedy. The constitutional jurisprudence is standing. Standing means that the supervisory power is questionable but it is out there and could be potentially used at some point in time.
How is it possible for the Constitution to be applicable to the states? Thru the conduit of the due process clause of the Fourth Amendment:
The due process of law is what the Supreme Court deems a fundamental right – fundamental to the American scheme of justice. Those kinds of rights are required by the states to provide to their citizens in order to be in compliance with the Constitution.
The majority of the Bill of Rights has been held to be fundamental rights that are applicable to the states with some exceptions (a grand jury).
INDEPENDENT STATE GROUNDS
The Supreme Court will decide something and Congress will want to protect their turf and create a law opposite of how the Supreme Court ruled. Another tension we have is the states – the states wanting to be able to decide what they want and not have the federal government come in and tell them what to do.
Michigan v. Long: The states have the right to set the ceiling on the protection that they are going to give to their citizens. The US Constitution as interpreted by the Supreme Court sets the floor. States setting the rights for their citizens cannot drop below that floor. But they can give their citizens greater protection. They can go higher and set the ceiling as long as they are in compliance with the floor as articulated by the Supreme Court.
One thing the states need to do to make sure the Supreme Court doesn’t come in and tell them that they are doing the wrong thing is discussed in Michigan v. Long. The state court restricted the police in the frisk of a car. Justice O’Connor interpreted the case as a Fourth Amendment concern. She said that if you states don’t want us to interpret your state constitutions then you need to make a plain statement that you are basing your decision on adequate and independent state grounds.
Michigan State Department of Police v. Sitz: The police had set up sobriety checkpoints. It went thru the state system and eventually worked its way up to the US Supreme Court. The question became, does this violate the US Constitution? Is it unreasonable to have sobriety checkpoints? The Supreme Court said, it is reasonable to have checkpoints. The case was remanded back to the Michigan courts. The Michigan state court said that may be the case under the federal Constitution but it violates our state constitution. That’s why you don’t see sobriety checkpoints in Michigan. The state has set the ceiling. Other states that have sobriety checkpoints base it on this Michigan case that was decided by the US Supreme Court!
SEIZURES OF THE PERSON
Fourth Amendment: It has the virtue of brevity but the vice of ambiguity.
There is a logical break in the two clauses: the reasonable clause and the clause for warrants but reasonableness covers everything. You are not going to get a warrant unless it’s based upon probable cause which is a quantity of evidence. Reasonable underscores the entire Fourth Amendment. Any conduct to be in compliance with the Fourth Amendment has to be reasonable. One type of reasonable outcome under the Fourth Amendment is to get a warrant based upon probable cause.
The language in the first clause limits the Fourth Amendment cases actually involving searches and seizures. It has to be an actual search and an actual seizure in order for the Fourth Amendment to apply.
Hypo: A police officer who forgot his watch sees someone walking on the sidewalk and he approaches her and stops her to ask the time. Is that a seizure under the Fourth Amendment? This is a consensual encounter and not a seizure. Police officers don’t violate the Fourth Amendment by merely approaching an individual on the street or in another public place by asking questions and the person is willing to listen.
A police officer can walk up to a door and ask questions just as an ordinary citizen can. If you can do it, then a police officer can also.
Consensual Contact: You need to determine whether or not the Fourth Amendment even applies. Consensual contact does not violate the Fourth Amendment at all.
Terry-type stop: Reasonable suspicion.
Full-blown Arrest/Search: A police officer needs probable cause and a warrant or some kind of exception.
Administrative/Special Needs Seizure: Sitz checkpoint case. Even though the police have no individualized suspicion about any of us, they can stop you because it’s reasonable. The government’s interest in having safe streets outweighs the degree of intrusiveness on all of us for having to stop for a few moments at a sobriety checkpoints.
Terry v. Ohio
Supreme Court, (1968)(Warren, CJ)
After suspicious activity a police officer pats down Terry and finds a gun and charges him for carrying a concealed weapon. The issue on appeal was unreasonable search and seizure.
The seizure occurred at least at the time when the police officer grabs him, spins him around and pats him down which happens in a matter of seconds. Once you are seized the Fourth Amendment is applicable. For the time thereafter the Fourth Amendment now controls.
Footnote 16: We thus decide nothing today concerning the constitutional propriety of an investigative "seizure" upon less than probable cause for purposes of "detention" and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred. We cannot tell with any certainty upon this record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon Constitutionally protected rights had occurred.
A seizure can occur with physical force or show of authority.
Florida v. Bostick
Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Without any particular suspicion, the officers picked out Bostick (D). They asked to inspect his ticket and identification. Both were returned to D immediately. The officers then explained to D that they were narcotics agents, looking for illegal drugs. The officers asked to search D's luggage. They advised D that he had the right to refuse consent. Whether or not he consented (this fact is in dispute), the officers checked his bag and found cocaine. D moved to suppress the evidence on the grounds that it had been seized in violation of his 4th Amendment rights.
Would the average person want to get off a bus just before it was about to leave? The officers did not point guns at Bostick or otherwise threaten him and they specifically advised Bostick that he could refuse consent.
The argument that would benefit Bostick is, if he is seized you have to be justified to do so. You have to be able to point to probable cause or some kind of reasonable suspicion. At the time there was no evidence on Bostick. His ticket and ID matched. Bostick argued that a seizure occurs when a reasonable person would believe that he or she is not ‘free to leave.’ (US v. Mendenhall) That was the test and it remains the standard for determining whether a seizure has occurred in the Terry-type context.
Would a reasonable person believe that he or she was not free to leave? The Court said that test does not apply because he was restricted by a factor independent of police conduct. The Florida Supreme Court rested its decision on a single fact – that the encounter took place on a bus – rather than on the totality of the circumstances. This is the court’s fall back position. If in doubt on the exam put: the totality of the circumstances – you’ll almost always get a point.
The new test for confined quarters is:
Notice that it is not when a person feels free to leave. The Supreme Court did not decide if a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter in this case and remanded it. The Supreme Court may decide that the test that they gave before is not correct anymore – here’s a new test – remand back to the state court for it to decide.
“We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the 'reasonable person' test presupposes an innocent person.”
It is ok for armed officers to go onto a bus and ask a few a questions and see if people would consent to the search of their bags as long as the reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.
California v. Hodari D
Supreme Court, J. Scalia (1991)
Officers were patrolling when they came upon five youths who when they saw the officers they apparently panicked and took flight. Hodari (D) and a companion ran in one direction, three others ran in another and the officers gave chase. One of the officers noticed that D threw a small rock. Just a few seconds later, D was tackled, handcuffed and was found to be carrying $130 in cash, and a pager, and the rock that was discarded was rock cocaine. The issue was whether D had been seized before he dropped the drugs.
The Supreme Court takes footnote 16 and adds the word “submit” – submission to the show of authority. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. So when Hodari is running and the police yell stop! – that is no seizure because he did not submit to a show of authority so the evidence is useable – the Fourth Amendment is not applicable.
Note 5: It’s all about showing submission to authority. If you read Scalia’s opinion carefully you can be seized and re-seized. Only when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a seizure occurred.
I want you to argue both the defendant’s position as well as the prosecutor’s argument.
Structure of the Cases:
You will read a seminal case (like Terry v. Ohio) and then you’re read various cases that have interpreted that case. The law is that seminal case and all the subsequent cases give the big picture.
What This Class Is About:
How the Constitution restricts what police can and can’t do.
What a prosecutor can and can’t do.
Fourth (8 weeks), Fifth (2-3 weeks), Sixth (2-3 weeks) and Fourteenth Amendment to the Constitution.
Judicial Restraint: Traditional, conservative approach. No interference with the executive and legislative branches of government. Only overrule if they have violated the Constitution
Comity (Federalism): The Federal Government should defer to the states unless there is a clear violation of the Constitution.
Liberal Approach: The Constitution is a living, breathing document and should look to the spirit of the document. The Constitution needs to change with our society.
Judicial Activism: Protect those who are not protected.
Case by Case Approach: No specific philosophy, very pragmatic. What’s going to work to solve this particular problem?
Economics and Social Policies: How a decision going one way will result in a huge increase in cases and it will cost the system a lot of money. Sometimes it’s political or technological – how far will technology take the government into people’s homes.
Lesson’s Learned in a Courtroom:
1. Stand up when called upon;
2. Speak clearly in an intelligible voice;
3. Know the rules in your given jurisdiction, preparedness;
4. Lawyer’s Robes: Wear a suit. Dress in a lawyerly manner so that you don’t insult the integrity of court;
5. Answer questions from the judge directly; and
6. Identify potential issues such as conflicts of interest.
PROCEDURAL STEPS IN A CRIMINAL CASE
The reported crime: The police have to find out about it. No crime, no investigation and the Constitution has no effect on what they do.
PRE-ARREST INVESTIGATION
On the scene investigations Terry v. Ohio
a) Stop and frisk
b) Border searches
Reactive Investigation: A crime has occurred and the police are responding.
Example: A bank robbery has occurred and the police arrive at the scene after the bank robbers have left – what do they do while they are there.
Proactive Investigation (Undercover Investigations):
Example: A wiretap is basically seizing the conversation that implies a privacy concern that is directly addressed in the Constitution.
Prosecutorial Investigations: Where the prosecutor gets involved by helping to get a search warrant.
ARREST
An arrest can occur with a warrant which is covered by the Fourth Amendment or without a warrant.
Plain View Seizures: If drugs are in plain view can you take them?
Inventory Searches: If illegal items are found subsequent to an impounded vehicle search can they use those items?
Consent Searches: Knowingly, intelligently and voluntarily waiving a right and giving consent to search.
BOOKING
Can police officers ask you questions while under arrest during booking? There is a bookings question exception. You can ask booking questions and Miranda does not apply to routine booking matters.
POST-ARREST INVESTIGATIONS
The case is not complete.
Search Warrants
Warrantless Search: A search based upon a permissible purpose such as an emergency.
When do you have to read Miranda in order to gain what someone says to be admissible?
What if the person requests an attorney?
THE DECISION TO CHARGE
Investigator Screening: At some point in time the investigator has got to make a decision to bring the matter to the prosecutor or the magistrate for an arrest warrant approval or complaint approval. Investigators will often screen out cases. If they decide that it’s not a good enough case to bring forward, they don’t even bring it to the prosecutor or the judge.
Prosecutor Screening: There may be a system where the investigator has to bring it to the prosecutor first and the prosecutor will screen the case. A prosecutor can exercise his or her discretion depending on policy.
FILING OF THE COMPLAINT
The complaint can be another stage where the prosecutor can screen cases.
FIRST APPEARANCE ON THE COMPLAINT
The judge is involved and the requirements under the Constitution seem to go up. We now have the Sixth Amendment applying – adversarial judicial criminal proceedings. The court will decide if the person should be released on bond or held because he or she is a flight risk or a danger to the community.
PRELIMINARY HEARING
The probable cause hearing. This is where the prosecutor has to establish thru testimony that there is probable cause that this particular person committed the crime and that the person should be bound over and held for the next stage of the criminal proceedings. Both the federal and the state systems have preliminary hearings but it is more frequent for a state to have a preliminary hearing. The reason for that is because most states do not have grand juries.
GRAND JURY PROCEEDINGS
The Fifth Amendment controls the grand jury. The Supreme Court has decided that a right to a grand jury indictment is not a fundamental right under the Constitution. The states are not required to have a grand jury system. The federal system does because it is a right under the Constitution. If a state does not have a grand jury system they will use preliminary hearings.
FILING INDICTMENT OR INFORMATION
The indictment is the document that is issued by the grand jury after they have made an independent and separate determination that there is probable cause and a particular person committed a crime.
ARRAIGNMENT ON INFORMATION OR INDICTMENT
After the document is filed you are arraigned and you again go back again in front of the court. The court may ask how you plead but generally for setting a date to hear motions.
PLEA HEARINGS
Most cases are resolved at this step by way of a plea.
PRETRIAL MOTIONS
In addition to plea hearings there are pretrial motion hearings. Sometimes these pleas can be contingent upon a defendant wanting to exercise his or her right for a motion to be heard. Often these motions are waived by a defendant who is willing to plead guilty. The motions are generally where a defense attorney says that he doesn’t want evidence that the government says that they have to come in to play based upon the Constitution. The argument is this evidence should be suppressed because the police violated the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment – some way. The prosecutor is going to file a response to that motion to suppress saying that the law was complied with and we want the court to interpret the law in the broadest way possible and even though the police may have been very aggressive in their pursuit of the evidence, what they did was consistent with the law.
That’s what this class is about. It’s all about the evidence and the defense attorney not wanting it in and the prosecutor wanting it in. Both are trying to uphold the law and both want the courts to interpret the law in their own unique way.
TRIAL
Impeachment Evidence: When can evidence that has previously excluded by the court because the court said there was a violation of this rule or that rule? Can it come up if the defendant takes the stand and says something inconsistent with the evidence that was excluded? Can it be used for impeachment purposes?
Effective Assistance of Counsel: Under the Sixth Amendment was the defendant effectively represented by his counsel? Does he have a right to an attorney at the trial? If so when?
SENTENCING
We don’t really cover sentencing in this class.
DIRECT APPELLATE REVIEW
How does a case get to the Supreme Court? Most of our cases will be Supreme Court cases.
In order for the Supreme Court to consider a case is has to be a Constitutional issue. If it’s a state issue and it does not involve the United States Constitution, they are not going to look at it at all.
Habeas Corpus: Another way to get in front of the Supreme Court is a person who has been incarcerated for sometime can reargue the constitutional issues. Basically what they say is that I am being held in violation of the US Constitution.
SUPREME COURT SUPERVISORY AUTHORITY
The Supreme Court can’t just tell a state court what to do because they don’t like what the state did. It has to be something that involves the US Constitution. The Supreme Court does not have a supervisory power over the state criminal justice system. They do have power over the state under the Constitution:
Contrast this with the authority over other Federal Courts:
The justices in McNabb were troubled because people were being arrested and there was a statute that said when you are arrested, the federal agent has to take you before the nearest available federal magistrate without unnecessary delay. While the statute required that, there was no remedy for it. There is nothing in the statute that says what you can do if someone violated the statute. The Court didn’t like that so they exercised their supervisory authority for confessions.
Today the scope of the supervisory authority is not very clear. In the Payner case it makes it clear that the supervisory power is not necessarily something that is a clearly articulated rule. It exists but it is not always clear
Payner’s constitutional rights were not violated because it wasn’t his briefcase. Even though there is an arguable constitutional violation, he’s without a remedy. The constitutional jurisprudence is standing. Standing means that the supervisory power is questionable but it is out there and could be potentially used at some point in time.
How is it possible for the Constitution to be applicable to the states? Thru the conduit of the due process clause of the Fourth Amendment:
The due process of law is what the Supreme Court deems a fundamental right – fundamental to the American scheme of justice. Those kinds of rights are required by the states to provide to their citizens in order to be in compliance with the Constitution.
The majority of the Bill of Rights has been held to be fundamental rights that are applicable to the states with some exceptions (a grand jury).
INDEPENDENT STATE GROUNDS
The Supreme Court will decide something and Congress will want to protect their turf and create a law opposite of how the Supreme Court ruled. Another tension we have is the states – the states wanting to be able to decide what they want and not have the federal government come in and tell them what to do.
Michigan v. Long: The states have the right to set the ceiling on the protection that they are going to give to their citizens. The US Constitution as interpreted by the Supreme Court sets the floor. States setting the rights for their citizens cannot drop below that floor. But they can give their citizens greater protection. They can go higher and set the ceiling as long as they are in compliance with the floor as articulated by the Supreme Court.
One thing the states need to do to make sure the Supreme Court doesn’t come in and tell them that they are doing the wrong thing is discussed in Michigan v. Long. The state court restricted the police in the frisk of a car. Justice O’Connor interpreted the case as a Fourth Amendment concern. She said that if you states don’t want us to interpret your state constitutions then you need to make a plain statement that you are basing your decision on adequate and independent state grounds.
Michigan State Department of Police v. Sitz: The police had set up sobriety checkpoints. It went thru the state system and eventually worked its way up to the US Supreme Court. The question became, does this violate the US Constitution? Is it unreasonable to have sobriety checkpoints? The Supreme Court said, it is reasonable to have checkpoints. The case was remanded back to the Michigan courts. The Michigan state court said that may be the case under the federal Constitution but it violates our state constitution. That’s why you don’t see sobriety checkpoints in Michigan. The state has set the ceiling. Other states that have sobriety checkpoints base it on this Michigan case that was decided by the US Supreme Court!
SEIZURES OF THE PERSON
Fourth Amendment: It has the virtue of brevity but the vice of ambiguity.
There is a logical break in the two clauses: the reasonable clause and the clause for warrants but reasonableness covers everything. You are not going to get a warrant unless it’s based upon probable cause which is a quantity of evidence. Reasonable underscores the entire Fourth Amendment. Any conduct to be in compliance with the Fourth Amendment has to be reasonable. One type of reasonable outcome under the Fourth Amendment is to get a warrant based upon probable cause.
The language in the first clause limits the Fourth Amendment cases actually involving searches and seizures. It has to be an actual search and an actual seizure in order for the Fourth Amendment to apply.
Hypo: A police officer who forgot his watch sees someone walking on the sidewalk and he approaches her and stops her to ask the time. Is that a seizure under the Fourth Amendment? This is a consensual encounter and not a seizure. Police officers don’t violate the Fourth Amendment by merely approaching an individual on the street or in another public place by asking questions and the person is willing to listen.
A police officer can walk up to a door and ask questions just as an ordinary citizen can. If you can do it, then a police officer can also.
Consensual Contact: You need to determine whether or not the Fourth Amendment even applies. Consensual contact does not violate the Fourth Amendment at all.
Terry-type stop: Reasonable suspicion.
Full-blown Arrest/Search: A police officer needs probable cause and a warrant or some kind of exception.
Administrative/Special Needs Seizure: Sitz checkpoint case. Even though the police have no individualized suspicion about any of us, they can stop you because it’s reasonable. The government’s interest in having safe streets outweighs the degree of intrusiveness on all of us for having to stop for a few moments at a sobriety checkpoints.
Terry v. Ohio
Supreme Court, (1968)(Warren, CJ)
After suspicious activity a police officer pats down Terry and finds a gun and charges him for carrying a concealed weapon. The issue on appeal was unreasonable search and seizure.
The seizure occurred at least at the time when the police officer grabs him, spins him around and pats him down which happens in a matter of seconds. Once you are seized the Fourth Amendment is applicable. For the time thereafter the Fourth Amendment now controls.
Footnote 16: We thus decide nothing today concerning the constitutional propriety of an investigative "seizure" upon less than probable cause for purposes of "detention" and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred. We cannot tell with any certainty upon this record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon Constitutionally protected rights had occurred.
A seizure can occur with physical force or show of authority.
Florida v. Bostick
Two officers boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Without any particular suspicion, the officers picked out Bostick (D). They asked to inspect his ticket and identification. Both were returned to D immediately. The officers then explained to D that they were narcotics agents, looking for illegal drugs. The officers asked to search D's luggage. They advised D that he had the right to refuse consent. Whether or not he consented (this fact is in dispute), the officers checked his bag and found cocaine. D moved to suppress the evidence on the grounds that it had been seized in violation of his 4th Amendment rights.
Would the average person want to get off a bus just before it was about to leave? The officers did not point guns at Bostick or otherwise threaten him and they specifically advised Bostick that he could refuse consent.
The argument that would benefit Bostick is, if he is seized you have to be justified to do so. You have to be able to point to probable cause or some kind of reasonable suspicion. At the time there was no evidence on Bostick. His ticket and ID matched. Bostick argued that a seizure occurs when a reasonable person would believe that he or she is not ‘free to leave.’ (US v. Mendenhall) That was the test and it remains the standard for determining whether a seizure has occurred in the Terry-type context.
Would a reasonable person believe that he or she was not free to leave? The Court said that test does not apply because he was restricted by a factor independent of police conduct. The Florida Supreme Court rested its decision on a single fact – that the encounter took place on a bus – rather than on the totality of the circumstances. This is the court’s fall back position. If in doubt on the exam put: the totality of the circumstances – you’ll almost always get a point.
The new test for confined quarters is:
Notice that it is not when a person feels free to leave. The Supreme Court did not decide if a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter in this case and remanded it. The Supreme Court may decide that the test that they gave before is not correct anymore – here’s a new test – remand back to the state court for it to decide.
“We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the 'reasonable person' test presupposes an innocent person.”
It is ok for armed officers to go onto a bus and ask a few a questions and see if people would consent to the search of their bags as long as the reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.
California v. Hodari D
Supreme Court, J. Scalia (1991)
Officers were patrolling when they came upon five youths who when they saw the officers they apparently panicked and took flight. Hodari (D) and a companion ran in one direction, three others ran in another and the officers gave chase. One of the officers noticed that D threw a small rock. Just a few seconds later, D was tackled, handcuffed and was found to be carrying $130 in cash, and a pager, and the rock that was discarded was rock cocaine. The issue was whether D had been seized before he dropped the drugs.
The Supreme Court takes footnote 16 and adds the word “submit” – submission to the show of authority. An arrest requires either physical force or, where that is absent, submission to the assertion of authority. So when Hodari is running and the police yell stop! – that is no seizure because he did not submit to a show of authority so the evidence is useable – the Fourth Amendment is not applicable.
Note 5: It’s all about showing submission to authority. If you read Scalia’s opinion carefully you can be seized and re-seized. Only when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a seizure occurred.
I want you to argue both the defendant’s position as well as the prosecutor’s argument.
REVIEW
Michigan v. Summers
J. Stevens, 1981
Muehler v. Mena
Mena does not appropriately extend
Ybarra v. Illinois
J. Stewart, 1979
The difference is one is being held and one is being frisked.
Dunaway v. New York
J. Brennan, 1979
Florida v. Rover
Supreme Court, 1983
Davis v. Mississippi
J. Brennan, 1969
Kaupp v. Texas
Supreme Court, 2003 (per curiam)
US v. Place
J. O’Connor, 1983
90 minute delay too long, unreasonable under the circumstances.
Movement – suspect or bags.
Length of detention – no bright-line rule but length of time can be a consideration
PROBABLE CAUSE
The Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Arrest Warrant:
Is the quantity of evidence any different? No but there is a difference of what of?
Spinelli v. US (1969)(Harlan, J)
•Working off of Aguilar, Court further explains the two inquiries regarding hearsay evidence:
–(1) Basis of knowledge and
–(2) Veracity
•How should Aguilar’s two-pronged test be applied?
After Gates, what is task of magistrate when asked by police for a warrant?
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Bottom line: totality of circumstances
Probable Cause v. Reasonable Suspicion:
Alabama v. White (1990)
•Probable cause, like reasonable suspicion, can be based upon hearsay – the only difference being the level of suspicion that must be established
Probable Cause, Reasonable Suspicion & Anonymous Tip:
Florida v. J.L. (2000)(Ginsburg, J)
•Anonymous tip must exhibit moderate indicia of reliability to justify stop and frisk.
•Gates analysis applies to reasonable suspicion calculation too
Probable Cause:
Massachusetts v. Upton (1984)
•Applying Gates, court found ex-girlfriend informant information sufficiently reliable to support “magistrate’s determination that there was a fair probability that contraband or evidence of crime would be found in [defendant’s] motor home.”
Probable Cause:
Maryland v. Pringle,
124 S.Ct. 795( 2003) (Rehnquist, CJ)
•Calculating probable cause at an arrest scene
–When does the officer have enough to arrest?
– Who can the officer arrest?
Challenging a search warrant:
Franks v. Delaware (1978)(Blackmun, J)
•Under limited circumstances, the Court permits a defendant to attack a facially valid search warrant after the search has occurred.
There is a presumption that an affidavit attached to a …a Frank’s Hearing – whether or not the information should be relied upon. False statement knowingly…reliance upon the false statement. If …proves preponderance of the evidence…
Second Part of Class Three:
Arrest Warrants and Related Matters
•Main Question: When and under what circumstances do police need an arrest warrant before they can arrest someone for a crime?
The Warrant Requirement of Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Arrest in a public place:
United States v. Watson (1976)(White, J)
•“The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact.”
Arrest in a public place:
Atwater v. City of Lago Vista (2001)(Souter, J)
•Officer has authority to arrest without a warrant for minor criminal offense committed “in his presence” (“breach of peace” not required)
PROBABLE CAUSE
Probable Cause depends on the judge you are in front of more than anything else. The Supreme Court says, fair probability that evidence of a crime will be found in a given location or that a particular person committed a particular crime. Illinois v. Gates. It’s the totality of circumstances, and it’s common sense. It’s not about hardened certainties it’s about probabilities. It is very fact specific. Gates says, use any of the factors from the Aguilar-Spinelli Tests that are applicable but you don’t have to go thru a rigid two-step process in order to determine whether or not you have Probable Cause.
You need to know the legal standard, the factors, the way the court approaches it but recognize that each court is going to be a little different. If you are prosecutors, err on the side of putting more in than less. If you are the defense attorney hope that the prosecutor puts in less so that you can get the evidence suppressed because of lack of Probable Cause.
ARREST WARRANTS
For an arrest of a felony in public you do not need an arrest warrant. Watson case. It is one of the few bright-line rules you have in this class.
Minor Offenses: Atwater v. City of Lago Vista. With regard to minor offenses, as long as it occurred in the officer’s presence, it doesn’t also have to involve a breach of the peace and the officer can arrest without a warrant.
ARREST IN THE HOME
Payton v. New York
Supreme Court, 1980, Stevens, J
Arrest in the Home: the Payton Warrant Requirement Rule.
Absent exigent circumstances, the police need a warrant to go into somebody’s house unless there is consent.
The Fourth Amendment is all about reasonableness and the Supreme Court is always looking for it. They want to make it so that the law is easy for the cops to understand. See also the Summers case.
If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. The Court in Payton noted that entry into a private home is an extreme intrusion and that an entry for the purpose of making an arrest is nearly as intrusive as an entry for a search. Therefore, the Fourth Amendment requires that a neutral and detached official certify that there is probable cause to make the arrest before this intrusion may take place.
A warrantless arrest made in violation of Payton will not prevent the defendant from being brought to trial (he can always be re-arrested after a warrant has been issued). The principal consequence of an invalid is likely to be that evidence seized during the arrest will not be admissible. Thus in Payton itself, the police entered Payton's residence to arrest him, and found a shell casing in plain view, which was later admitted against Payton at his trial. As a result of the Supreme Court's ruling that the warrantless entry was impermissible, the shell casing became inadmissible and a new trial was necessary.
If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain a warrant, no warrant is necessary, assuming the crime is a serious one.
ARREST IN A THIRD PARTY’S HOME
Steagald v. United States
Supreme Court, (1981)(Marshall, J)
The Steagald principle
Entry to arrest non-resident: The mere fact that the police are attempting to make an arrest does not by itself permit them to enter a private dwelling in search of the suspect. Thus where the police are not in hot pursuit, and there are no other exigent circumstances, they may not enter one person's private dwelling to arrest another, even if they are acting pursuant to an arrest warrant. Steagald v. U.S., 451 U.S. 204 (1981).
1. Facts of Steagald: In Steagald, federal agents learned from an informer that one Lyons, a federal fugitive, could probably be found at a certain address. They procured a warrant for his arrest (although the warrant did not mention the address); they entered the premises, and while searching for Lyons there, crane upon drugs belonging to Steagald, a resident of the house. (They did not find Lyons at all).
2. Holding: The Court held that the arrest warrant could not be used as legal authority to enter the home of a person other than the person named in the warrant. The Court's principal objection was that no neutral magistrate ever evaluated the police officers' probable cause to believe that Lyons would be found at Steagald's home. (The Court's opinion indicated that had the magistrate who issued the arrest warrant found that there was probable cause to believe that Lyons would be found at Steagald's house, there would have been no constitutional difficulty with searching for Lyons in that house.)
This case is only here because of the drugs they found against Steagald. This is about protecting the third party’s interests.
EXIGENT CIRCUMSTANCES
Warden v. Hayden
Supreme Court (1967)
• “Exigencies of the Situation” may authorize warrantless entry into house: Hayden version of “hot pursuit”
Warden v. Hayden, 387 U.S. 294 (1967) (supra, p. 53) police pursued a robbery suspect to a particular house (which later turned out to be his own). The suspect's wife answered the door, and the police asked for and received permission to search for “a burglar.” During their search, they looked for weapons which he Might have concealed, and found incriminating clothing in a washing machine. Held, the warrantless search was justified by the "hot pursuit" (regardless of the validity of the suspect's wife's consent to the search): “The police were informed that an armed robbery had taken place, and that the suspect had entered a certain house less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or fright use against them.”
There is a concern for the danger of the occupants of the home, danger to the suspect and danger to the police officers. This overrides the sanctity of the home.
The Court rejected the defendant's contention that the clothing seized from the washing machine was not validly seized because the police were not looking weapons in the washer; the Court found that the fact that the officer who looked in the washer testified that he was looting for the suspect or the money, was not dispositive of whether he had also been looking for weapons. The Court further stated that it did not decide the question whether the “hot pursuit” exception to the warrant requirement allowed only a search for the suspect and weapons.
Danger is not the only exigent circumstance but can include the destruction of evidence. A bad check writer could shred evidence in a hot pursuit situation. The Court says with regard to the hot pursuit situation, the Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would greatly endanger their lives and the lives of others. The interest here is a protection of the public and the officers.
The officers can use evidence that they find during the pursuit and the arrest. Once the police are inside they can seize things in plain view, they can do a protective sweep. Once you are arrested, the search incident to the arrest could come up as well.
Quote from page 369 by J. Brennan:
“An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.”
United States v. Santana
(1976)
• Hot Pursuit - Public Place to a Private Place
If the police are pursuing a felony suspect, and he runs into either his own or another’s dwelling, a warrantless entry may be permitted under the “hot pursuit” doctrine.
Minnesota v. Olson
Supreme Court, 1990
• The standard for determining whether exigent circumstances existed
The Supreme Court held that an overnight guest normally has a legitimate expectation of privacy in the home where he is staying. The police may not normally make a warrantless arrest or a warrantless search of the premises where the defendant is staying. If the owner consents to a search the guest is out of luck. Anything seized will be deemed the fruits of an illegal search.
The Four Ways To Get Exigent Circumstances:
1. Hot pursuit of a fleeing felon;
2. Eminent destruction of evidence;
3. Need to prevent the suspects escape; and
4. The risk of danger to police or to other persons inside or outside the dwelling.
The Minnesota Supreme Court concluded that no exigent circumstances were present. The court also thought that in the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present and that assessing the risk of danger, the gravity of the crime and the likelihood that the suspect is armed should be considered.
Brigham City v. Stuart
126 S. Ct. 1943 (2006)
• Was the gravity of the “exigency” or “emergency” sufficient to justify, under the Fourth Amendment, entry into the home to stop a fight?
Officers said they saw thru a screen door and window that a juvenile who was being held back by several adults broke loose and struck one of the victims so hard that they were spitting blood.
As long as the circumstances are viewed objectively to justify the action, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.
Corbett: It doesn’t matter what the officer’s subjective motivation is in pulling a car over as long as objectively evidence can be pointed to that reflects the legal justification for pulling the car over.
The full opinion of the case reveals that the police charged the adult with contributing to the delinquency of a minor. The officer’s were called to the house because of a loud party.
LIMITATIONS ON EXIGENT CIRCUMSTANCES
Exigency is not created just because you’ve arrested a person for a felony in front of their house. You can’t just go in and because you think exigent circumstances have been created.
Vale v. Louisiana
Supreme Court, 1970, Stewart
• Arrest on the street does not provide its own “exigent circumstances” so as to justify a warrantless search of arrestee’s house
The Court suggested that if the arresting officers knew that contraband or evidence was “in the process of destruction” when the search was begun, or if the officers knew that these items were “about to be removed from the jurisdiction,” then a warrantless search for these items would have been allowed.
EXIGENT CIRCUMSTANCES AND RELATED MATTERS
Segura v. United States
Supreme Court, 1984, Burger, CJ
• Warrantless entry of home and 19 hour occupation of it OK in order to prevent the destruction or removal of evidence while warrant secured
The general rule is: Get a warrant. The court will go very far in order to promote that rule.
Illinois v. McArthur
Supreme Court, 2001, Breyer, J
• Warrantless seizure of person and premises by prohibiting free access to residence while waiting for search warrant
If the police have reasonable cause to believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist.
The two hour securing of him and he premises while the police obtained a search warrant was reasonable. They had probable cause based on testimony that there were drugs in the house. The police would allow McArthur to go inside the house but they would accompany him every time.
LIMITATIONS ON EXIGENT CIRCUMSTANCES
Mincey v. Arizona
Supreme Court, 1978
• Extent of the so-called “homicide scene” exception to warrant requirement - provide “exigent circumstances”?
The defendant, in his own apartment, shot an undercover police officer and was shortly thereafter arrested by other officers. Homicide detectives then began an extensive warrantless search of the entire apartment, a search which lasted four days.
The fact that the place being searched is the scene of a recent murder or the scene of a serious crime is not by itself an exigent circumstance automatically justifying a warrantless search.
KNOCK AND ANNOUNCE
Richards v. Wisconsin
(1997)(Stevens, J)
• Officer’s obligation to knock and announce presence and purpose
Before a police officer can arrest somebody at his or her home he has to knock and announce who he is. A police officer can go in without knocking and announcing the presence and purpose if he has a reasonable suspicion of destruction of evidence or danger to the officers.
If you have a reasonable suspicion ahead of time you should build that into your affidavit that is attached to the arrest warrant in order to make it that much more clearer. That doesn’t mean that a reasonable suspicion of those things you just described couldn’t occur or arise at the time of arrival.
United States v. Banks,
124 S.Ct. 521 (2003) (Souter, J)
• How long must police wait before they can enter after announcing their presence and purpose?
Cocaine is easily disposable; therefore, after 15-20 seconds without a response, police could fairly suspect that any cocaine would be gone if they waited any longer. The fact that the defendant was in the shower and could not get to the door earlier is irrelevant, because what matters is the police’s actual belief about the danger of destruction of evidence, not the underlying reality (and the police had no reason to believe that the defendant was in the shower).
Corbett: The exigent circumstance of the destruction of evidence was created here. The police had a reasonable suspicion that evidence would be destroyed because it was a drug search warrant and the silence after the knock and announce is evidence to support the fact that evidence might be destroyed. It’s not about certainties, it’s about probabilities.
Hypo: What if the search warrant was for stolen pianos? How long do you the police have to wait? Can they wait two minutes? I don’t have the answer to this one but it might come down to reasonableness. What the court would say is anybody’s guess and that’s where the argument comes into play.
SEARCHES FOR EVIDENCE
When we first got together I emphasized how important it is to determine whether or not we even have a seizure under the Fourth Amendment. The Fourth Amendment applies to unreasonable searches and seizures. We have to have a seizure and we also have to have a search. And if what you have constitutes a search within the Fourth Amendment, then the Fourth Amendment is applicable. If it is not a search under the Fourth Amendment, then the Fourth Amendment is not applicable.
It is really important for you to decide ahead of time if you have a search under the Fourth Amendment.
Protected Areas and Interests: Threshold Question?
• What constitutes search within the meaning of the 4th Amendment?
• Importance: if what police did is not considered search, 4th Amendment does not apply (and hence, police not restricted)!
Webster’s Definition of “Search”
• “To go over or look through for the purpose of finding something; explore; rummage; examine.”
• One of our questions for today: How does the Supreme Court’s definition of “search” differ from Webster’s definition?
Once again, the 4th Amendment:
• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Under Katz we are going to find out that the person’s house, papers, and effects are not the key – it may be a part of the Fourth Amendment but the key is the Fourth Amendment protects people, not places.
SEARCHES
Protected Areas and Interests
Katz v. United States
(1967)(Stewart, J)
• What “a Person Knowingly Exposes to the Public, Even in His Own Home or Office, Is Not a Subject of Fourth Amendment Protection”; “What [a Person] Seeks to Preserve As Private, Even in an Area Accessible to the Public, May Be Constitutionally Protected.”
The government (P) thought that Katz (D) was transmitting from a public phone booth information related to illegal gambling activities. Although no warrant was sought or received, officers intercepted and recorded D's side of the phone conversations with an electronic listening device attached to the outside of the booth. At trial, over D's objections, these recordings were introduced as evidence. D was convicted. The appellate court affirmed. D appealed.
The case is not about phone booths and whether or not you have a reasonable expectation of privacy in a phone booth. This case is about Katz himself.
Listening to and recording phone conversations with an electronic listening device attached to the outside of a public phone booth is a "search and seizure" subject to 4th Amendment protections, and a search warrant is required. The Fourth Amendment is not confined to instances of actual physical trespass, rather the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements…without any ‘technical trespass under…local property law.'” The Fourth Amendment protects people rather than places, and thus its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. In order to determine a Fourth Amendment search and seizure violation there must be a violation of a person's reasonable expectation of privacy.
J. Harlan’s concurrence in Katz:
• What is his understanding regarding rule for determining whether particular police investigation activity constitutes search within meaning of 4th Amendment?
Katz v. US establishes that even communications which in some sense occur in “public” may be protected under the Fourth Amendment.
TWO FOLD REQUIREMENT/TEST:
Basically if:
1. The defendant had an actual (subjective) expectation of privacy about the communication; and
2. That expectation was one which society recognizes as reasonable
Then, the communication will be protected by the Fourth Amendment, even if it occurred outside of a private home or office.
Oliver v. United States
Supreme Court, 1984, Powell,
• An Open Field Is Not a Person, House, Paper, or Effect; therefore, open fields beyond the curtilage are not protected by the Fourth Amendment
The defendant has a large chunk of rural property. Acting on reports that marihuana was being raised on petitioner's farm, narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing" sign, but with a footpath around one side. The agents then walked around the gate and along the road and found a field of marihuana over a mile from petitioner's house.
This is not a search within the Fourth Amendment. Open fields are not "effects" within the meaning of the Amendment, the term "effects" being less inclusive than "property," and not encompassing open fields. The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the Amendment.
Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields.
Common law curtilage is defined by Professor Bretz as the area you mow. Curtilage is protected but an open field is not – no reasonable expectation of privacy.
*As the Court explained in United States v. Dunn (Footnote e, page 253), curtilage questions should be resolved with particular reference to Four Factors:
1. The proximity of the area claimed to be curtilage to the home;
2. Whether the area is included within an enclosure surrounding the home;
3. The nature of the uses to which the area is put; and
4. The steps taken by the resident to protect the area from observation by people passing by.
Dissenting Opinion, J. Marshall:
“Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the state in which the land lies is protected by the Fourth Amendment’s proscription of unreasonable searches and seizures.”
Florida v. Riley
Supreme Court, 1989, White, J, Four Justice Plurality
• Aerial Surveillance Not a Search Under Certain Circumstances
Police flew over Riley's (D) property in a helicopter, about 400 feet above the ground. They viewed D's partially covered greenhouse and observed marijuana plants inside. D was arrested and convicted based on this evidence. D appealed, claiming that the evidence should be suppressed as an unreasonable search. The Florida Supreme Court held that under the Florida Constitution, the state's (P) actions required a warrant. The US Supreme Court granted certiorari.
The five justice majority held that even a view taken by the police from a helicopter flying only 400 feet above the ground still fell within the “plain view” doctrine, and was therefore not a search.
Corbett: If any person can do it, the police can do it; hence, there is no reasonable expectation of privacy.
Rationale: Fixed-wing aircraft are limited by FAA Regulations to flying 1,000 feet or more above the ground (except on takeoff and landing). But no such limitation applies to helicopters - under FAA Regulations, helicopters can be operated at virtually any altitude as long as they pose no safety hazard. Four members of the Court seemed to conclude that as long as a police helicopter is flying where a member of public could fly a helicopter (i.e., visually at any altitude), no search would ever take place because the homeowner would have no reasonable expectation of being free from such overflights. (The plurality thought there flight be an exception if the helicopter was used to spot "intimate details" or caused "undue noise…dust or threat of injury," but neither factor was present here.) But the fifth member of the Court who believed that the flight at issue in Riley was not a search (justice O'Connor) believed that the fact that the flight was legal was not dispositive – for her, if a flight takes place at a level lower than members of the public generally fly, a homeowner will have a justifiable expectation of privacy, and the flight will be a ‘search’. However, O'Connor believed that the 400-foot level was not such a low altitude.
The Dissenters:
For the dissenters the issue was whether there was any real, practical likelihood that the public would fly where the police were flying, not whether the public had an abstract legal right to do so. Only if the public could be expected to fly where the police were flying, would defendant’s expectation of being free from such surveillance be “unreasonable.” The dissenters believed that the public does not commonly fly 400 feet above residences, so the police helicopter was not where it had a “plain view” of defendant’s house and there was a Fourth Amendment search.
Corbett: “We can talk about Riley your honor, but let’s count the votes. 5 of the 9 justices, which is a majority, say that the test should be whether or not the public regularly flies at this level. And if the public regularly flies at this level, then I am prepared to concede that my client has no reasonable expectation of privacy.” I can put pilots on the stand to testify that nobody flies at that height. Now I’m putting on evidence and I’m hopefully meeting my burden of proof to establish that my client’s expectation of privacy existed and was reasonable. It’s a lesson in counting the votes. Is it the law? It’s only the law if somebody argues it.
California v. Greenwood
Supreme Court, 1988, White, J
• Dumpster Diving - No Reasonable Expectation of Privacy in Garbage Placed by the Curb
Police suspected Greenwood (D) of drug trafficking. They asked the neighborhood's regular trash collector for the plastic bags that D had left on the curb in front of his house. They were searching the trash to gather enough evidence to obtain a search warrant for D's home. During the search they found cocaine and hashish. D was arrested on felony narcotics charges. The Superior Court dismissed the charges on the authority of People v. Krivda, which held that warrantless trash searches violate the 4th Amendment and the California Constitution. The Court of Appeals affirmed. The state (P) appealed.
The issue on appeal is whether or not this violates the Fourth Amendment.
Trash or other abandoned property will normally not be material as to which the owner has an objectively reasonable expectation of privacy. Therefore, the Supreme Court has held that, when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that trash without a warrant.
Rationale: The Court in Greenwood reasoned that regardless of whether the particular trash owner subjectively believes that his trash will remain private and unexamined, society should not and does not recognize that belief as “objectively reasonable.” Trash left at curbside is readily accessible to “animals, children, scavengers, snoops, and other members of the public,” so the owner cannot reasonably expect that it will remain private. Furthermore, the Court observed, when the owner puts the trash on the street for pickup, he is intentionally and voluntarily conveying it to a third party (the trash collector), who may himself sort through the trash.
Hypo: What if you kept the garbage near your garage? The test for a search is whether or not there is an actual subjective expectation of privacy and is society prepared to recognize it as reasonable? If you change the facts, you get a different outcome.
The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to installed at the telephone company's offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
The Bush Administration used the Smith case as their focus on why domestic surveillance is allowable. They have since sought approval under the Foreign Surveillance Intelligence Act (1978), a congressional statute, to seek the warrants for phone taps.
So, why should we be happy with Greenwood?
If a state doesn’t like the Greenwood opinion it could give its citizens more protection in the state’s constitution. In Indiana the police have to have reasonable suspicion that the garbage will contain evidence of a crime. A state cannot drop below the protection of the Constitution but it can give their citizens greater protection.
Bond v. United States
Supreme Court, 2000, Rehnquist, CJ
• The Wrongful Squeeze Case: Because a person manifests an actual expectation of privacy in the contents of his carry-on luggage and because society is prepared to recognize that expectation as reasonable, the physical manipulation of that luggage by federal agents violated a reasonable expectation of privacy and constituted a search
We can reasonably expect that society will move your bags, but we don’t expect that they will squeeze it. That takes us beyond what is reasonable.
The Use of Technology
United States v. Knotts
Supreme Court, 1983, Rehnquist, J.
• Use of an Electronic Beeper Tracking Device - “Augmenting Sensory Faculties” With “Science and Technology”
With the consent of a chemical company, police installed a beeper into a container of chloroform, a chemical used to manufacturer illicit drugs, prior to purchase. By a combination of visual surveillance and monitoring of the beeper signal the police tracked the container in a vehicle. On that evidence and other information, a search warrant was issued and a drug lab was discovered.
The Court held that the use of such a beeper to follow a vehicle on public roads does not violate the driver’s reasonable expectation of privacy.
Rationale: The Court reasoned that a driver voluntarily conveys to anyone who watches him the fact that he is traveling over particular roads in a particular direction to a particular destination; since the beeper merely supplied information that could have been received by ordinary plain-view surveillance; there was no Fourth Amendment violation. If the police officers could do it by simply following him, it does not matter that they used technology to enhance their ability.
United States v. Karo
Supreme Court, 1984
• Beepers, Part II - 4th Amendment Search if Reveals Information Within a Home
In 1980, a DEA agent learned from an informant that Karo (D) had ordered 50 gallons of ether for extracting cocaine from imported clothing. The government (P) obtained a court order authorizing the installation and monitoring of a beeper in an ether can. In early 1981, the ether cans were delivered to a house rented by D. By monitoring the beeper, DEA agents determined that the ether can was on the premises on February 6 and 7. On February 8, the agents received a search warrant for the house. On February 10, they searched D's house, seized cocaine, and laboratory equipment, and arrested D. The District Court invalidated both warrants. P appealed. The Court of Appeals affirmed as to the second warrant. P appealed.
RULE: The installation of a beeper does not violate the 4th Amendment, but the use of this beeper to acquire information that could not be witnessed from public viewing (inside the home) does violate the 4th Amendment if you don’t have a search warrant.
How do you get a search warrant if you don’t know where the tracking device is going? The Court concluded that it would suffice if the warrant were “to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper (probable cause), and the length of time for which beeper surveillance is requested.”
The government can get the authority to get a beeper placed inside a container. Once the court approves it, thru this kind of a warrant that the Court described in Karo, law enforcement can go inside of a home and they will be in compliance with the Fourth Amendment.
REVIEW
What is a search? If the activity the police are engaged in is a search under the Fourth Amendment, then the Fourth Amendment is applicable. How do you determine if it involves the Fourth Amendment? The short answer is: if it involves a reasonable expectation of privacy. The defendant has to exhibit a subjective, actual expectation of privacy and society is prepared to recognize as reasonable.
If the conduct involves a reasonable expectation of privacy, the police need a warrant, or consent, or exigent circumstances, or an exception (as the cases discussed below). If it does not involve a reasonable expectation of privacy, then as a constitutional matter, the police are not restricted via the Fourth Amendment.
We know from Oliver v. United States, an open field is an area where there is no reasonable expectation of privacy; therefore, the police can go there. An open field is any area outside the curtilege. Curtilege is defined in United States v. Dunn.
The presumption is to some extent that if it’s a house or curtilege area, it may be protected. Curtilege may not be protected depending on how open you are or what you may be doing. In Florida v. Riley the curtilege was visible from 400 feet. If the public can go there, so can the police.
Beepers are allowed to track cars but once it goes inside the house, you’d better have a warrant. The Court gave us an example of an alternative kind of warrant that might be useable (referenced on page 266, note c, and on the TWEN page).
There is a reasonable expectation of privacy that your luggage will not be squeezed.
SEARCHES
The Use of Technology
Dow Chemical Company v. US
(1986)(Burger, CJ)
• Aerial Surveillance with Photographic Magnification of an industrial open field.
The language of Dow Chemical:
• “It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”
If it’s generally available to the public, then the police can use it.
Rationale: The Court relied on the fact that the open areas here were not “immediately adjacent to a private home, where privacy expectations are most heightened.” Furthermore, the Court found these to be areas where defendant had not made “any effort to protect against aerial surveillance”
The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.
Outdoor property may apparently fall within the “curtilege” for purposes of ground-level observation yet not fall within it for purposes of “aerial” observation.
Kyllo v. United States
2001, Scalia, J
The growing marijuana with heat lamps case.
• Thermal Imaging Devices and the intimacy of any information from the home
When the government obtains special high-tech devices, not in general civilian use, and employs them from public places to gain “views” that could not be had by the naked eye. As a result of this case, the use of such devices will be considered a search requiring a warrant.
You have to have probable cause to use a thermal imager. The majority focused on, “The right of the people to be secure in their persons, houses, papers, and effects…”
The dissent, by Justice Stevens, relied on the distinction between “through-the-wall surveillance and off-the-wall surveillance.
Protected Areas and Interests:
United States v. Place
(1983)
• Dog Sniffs; Investigatory Techniques that Disclose Criminality and Nothing Else
The court gives four reasons why a dog sniff is not a search under the Fourth Amendment:
1. It only reveals the presence of contraband
2. Minimally intrusive
3. Open area outside
4. Public place
The Court reasoned that since a sniff test by a well-trained dog discloses only the presence or absence of narcotics, a contraband item, the sniff test does not compromise any legitimate privacy interest of the person whose possessions are being sniffed because no one has the right to possess contraband, and thus no right to object to the disclosure that someone is in the possession of contraband.
There is a high government interest in stopping the criminality that is associated with drugs. The Court is especially disinclined to interpret the Fourth Amendment that limits the law enforcement’s ability to do their job.
Illinois v. Caballes
125 S.Ct. 834 2005, Stevens, J
• “In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.”
The Test: Place and Caballes clearly mean that if the police use a dog to perform an odor test that merely determines whether contraband is present or not, no search takes place, because no information about a legally possessable substance is being revealed. However, these two canine-sniff cases do not answer the more general question of whether government may rely on a “plain odor” doctrine to run canine sniff tests in public places to find the existence of substances that may be legally possessed.
Hypo: Dog sniffing at a MSU game. If a dog hits on you, you may be seized. There has to be an individualized suspicion.
In situations where there is no particular basis for suspecting criminal activity – it’s not clear whether the use of the dogs to detect the telltale odor would constitute a Fourth Amendment search. A strong case can be made that this would be a Fourth Amendment search, because a person has a legitimate expectation of privacy as to a legally-possessable substance in his car that cannot be detected from the street by human senses.
SEARCH WARRANTS
• Assuming that Police Conduct Amounts to Search, What Restrictions Does the 4th Amendment Impose?
Short Answer: In Order for Search to Be Constitutional, 4th Amendment Requires Search Be Supported by Probable Cause and That Search Be Made Pursuant to Warrant or Some Exception to Warrant Requirements
Issuance of Search Warrants
• Issuance of Search Warrants Must Be by “Neutral and Detached” Magistrates
• Search Warrants Must Particularly Describe Place to Be Searched and Person or Things to Be Seized.
You must state with particularity: where it is and the items you wish to want to seize. That doesn’t mean that it has to have every minute detail, but it has to be fairly particularized to the point where it limits the officer’s discretion. You can’t just say: search for any and all evidence. If it’s a drug case, you have to list things pertaining to drugs. If it’s a fraud case, you have to list things pertaining to the fraud case and not just any and all potential evidence. The search warrant has to have a sufficient enough detail of particularity so that the scope of the search is limited.
United States v. Grubbs
126 S.Ct. 1494 (2006) (Scalia, J)
• “Anticipatory warrants are, therefore, no different in principle from ordinary warrants.”
Just because the search warrant was saying: you can search when the delivery of the child porn occurs doesn’t mean that it’s any different in principal from all search warrants. All search warrants are saying: we’re giving you the search warrant now based upon probable cause of what will be the case when the search warrant is executed.
The Court said: just because it’s a little different doesn’t mean that it’s different from other search warrants that we have approved in the past.
When an anticipatory warrant is issued, the fact that the contraband is not presently at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants: They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met, but also to the likelihood that the condition will be met, and thus that a proper object of seizure will be on the described premises. Here, the occurrence of the triggering condition—successful delivery of the videotape—would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied.
EXCEPTIONS TO THE WARRANT REQUIREMENT
We’ve already talked about some exceptions to the warrant requirement:
Exigent circumstances; and
Terry-type searches
T-CHEAPS
Terry-type stop
Consent
Hot Pursuit
Exigent Circumstances
Auto or Vehicle Exception
Plain View
Search Incident to Lawful Arrest
• Questions to Keep in Mind:
What is the Trigger for the Exception, i.e., What Circumstances Bring It Into Play?
Example: Trigger for searching a vehicle exception: Probable cause that evidence of a crime is found in the car.
What Is Physical Scope of Exception, i.e., Where Can They Look and What Can They Look for?
How Long Does Exception Last, i.e., Any Time Limits?
What Is the Rationale Behind Exception?
Example: Rationale behind vehicle Exception: Ready mobility of a vehicle and reduced expectation of privacy.
United States v. Robinson
(1973)(Rehnquist, J)
• Search of a Person Incident to Arrest
• Bright-line Rule: Based upon an arrest, can do a search
FACTS: On April 23, 1968 Officer Jenks observed Robinson (D) driving a 1965 Cadillac in DC around 11:00 PM. Jenks had checked D's operator permit four days earlier, and had reason to believe that D was driving without a license. He pulled D over and arrested him for operation after license revocation and obtaining a permit by misrepresentation.
Officer Jenks had probable cause to arrest Robinson and he affected a full custody arrest. Officer Jenks followed police department procedures and searched D for weapons. While searching D, he felt an object in D's coat. He could not tell what it was, but did not think it was a weapon. He pulled out a crumpled cigarette package. He felt something inside the package, which he could tell were not cigarettes. Jenks opened the package and found 14 gelatin capsules inside which contained heroin. The heroin was admitted into evidence at the trial which resulted in defendant’s conviction in District Court. The Court of Appeals reversed the conviction, holding that the heroin introduced had been obtained as a result of a search, which violated the 4th Amendment to the United States Constitution. P appealed.
The body search of Robinson was conducted according to police department regulations, which required that any time a person is stopped for a “full-custody arrest” (i.e., an arrest where he is to be taken to the police station for booking), a full-body search should be conducted.
Holding: The Supreme Court held that the body search was valid under the search-incident-to-arrest exception. The Court stated that such a body search would be allowable in any situation in which a "full-custody" arrest occurs. "In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment."
Rationale: The Court based its holding largely on the right of the police to protect themselves by looking for weapons concealed on the person of the arrestee. The majority rejected the contention that because the arrest was for a minor traffic violation, the suspect was very unlikely to have dangerous weapons on him; the Court cited the fact that “approximately 30% of the shootings of police officers occur when officer approaches a person seated in a car.”
Later judicial second-guessing undesirable: The majority also relied on the fact that the officer's decision to check for concealed weapons is a “quick ad hoc judgment.” The Court stated that "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect."
Car not searched: The vehicle in Robinson was not searched. The Court implied that a search of the vehicle would not, even in the custodial arrest case, be justified by the incident-to-arrest exception, presumably since the driver is usually made to get out of the vehicle before being searched, and is then taken to the police station without returning to the car.
Effect of Robinson: Robinson seems to stand for the proposition that any time a traffic or other arrest is made, a full bodily search may be conducted incident to that arrest, as long as the arrest is “custodial,” i.e., as long as the arrestee will be taken to the station house for booking.
No subjective fear required: The search does not have to be made specifically for weapons, nor does the officer have to have a “subjective fear” that the suspect is armed (the arresting officer in Robinson testified that he did not have such fears, and was merely looking for evidence).
Dissent: Marshall (joined by Douglas and Brennan) The major point of the dissent was that it perverted the previous rationale for the search-incident-to-arrest exception, which was to allow a search for weapons. The dissent conceded that the officer in Robinson had the right to frisk for hard objects which might be weapons, but asserted that once it was clear that there were no hard objects which could be weapons, the officer had no reason to inspect a soft package. The dissent suggested that the officer could in any case have held on to the package, without opening it, and obtained a warrant for opening it later.
The trigger for this exception is a lawful arrest based upon probable cause
The physical scope of this exception is the full person.
They can look for evidence.
How long did it last?
What is the rationale?
Bright Line Rule: Even though the probable cause stems from a driving offense, the police can use the probable cause from that offense to ultimately introduce evidence such as drugs.
Atwater v. City of Lago Vista,
532 US 318 (2001)(Souter, J)
• Fourth Amendment does not prohibit custodial arrest of a person for a minor, “fine-only” offense; once arrested the officer is authorized to conduct search incident to arrest
Atwater P was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt which was in violation of Texas law. Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled P over. The officer could have issued a traffic citation but instead he takes the defendant into custody which was allowable under the statute. She’s arrested and searched at the local police station.
According to the Supreme Court, this didn’t violate the Fourth Amendment.
Souter’s Bright Line Rule: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
The problem is an officer on the street would sometimes not be able to tell which category an offense falls into, such as the amount of drugs, or if this was a repeat offender with multiple convictions – no longer a minor fine only offense.
The dissent warned that the majority’s approach would heighten the risk of harassment, especially of racial minorities.
Chimel v. California
(1969) (Stewart, J)
• Setting the parameters of a search incident to a lawful arrest: arrest warrant, without more, does not authorize search of entire premises where defendant arrested.
Police officers came to the home of the defendant, who was suspected of having robbed a coin shop. The police had an arrest warrant, but no search warrant. After arresting the defendant, the police conducted a full-scale search of the entire premises while the defendant’s wife was present.
Holding: The Court found the search to have been invalid, because it was unnecessarily widespread. The Court recognized the police's right to search the area within the defendant's immediate control, but held that the portion of the premises outside of that control could not be warrantlessly searched incident to arrest.
Rationale: The Court explained its holding in the following language: “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area “within his immediate control” – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching rooms other than that in which an arrest was justified, however, for routinely searching rooms other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant”
Dissent: A dissent, by Justice White (joined by Justice Black), argued that “assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search." In Chimel itself, for instance, argued the dissent, if the police had left the defendant's house to procure a warrant after the arrest, “it seems very likely that petitioner's wife, who in view of petitioners generally garrulous nature must have known of the robbery, would have removed the coins."
Arrest as exigent circumstance: The dissent agreed with the majority that as a general rule, search warrants are required. But the dissent contended that an arrest in a case where evidence might be destroyed constituted an “exigent circumstance.”
Vale v. Louisiana
Stewart, J, 1970
• Arrest on the street in front of house is not within immediate vicinity of inside of house justifying search of house on basis of search incident to arrest exception.
Officers possessing warrants for Vale's (D) arrest had information that D was residing at a specified address. They drove to the address in an unmarked car and set up surveillance of the house. The officers were convinced a narcotics sale had taken place. After informing D of his constitutional rights, the officers found narcotics in a bedroom. The Louisiana Supreme Court held that the search of the house did not violate the 4th Amendment because it occurred in the immediate vicinity of D's arrest. D appealed.
“A search may be incident to an arrest ‘only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’ If a search of a house is to be upheld incident to an arrest, that arrest must take place inside the house, not somewhere outside – whether two blocks away, twenty feet away, or on the sidewalk near the front steps. ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.’ That basic rule has never been questioned in this Court.”
Washington v. Chrisman
(1982)(Burger, CJ)
• “Grabbing Area” of a Suspect Changes if the Arrestee Moves
A student was observed by a police officer to be carrying liquor while leaving a dormitory. The police officer arrested the student and accompanied him back to the dormitory for his ID and waited in the doorway. While waiting, the police officer saw seeds and a pipe 10 feet away and entered the room and arrested the roommate.
Rationale: The Court reasoned that the mere possibility that the student might escape or gain access to a weapon in the room was enough to permit the police officer to stay with him. Since the officer had a right to be there, anything in plain view could be used as evidence.
Michigan v. Summers
J. Stevens, 1981
Muehler v. Mena
Mena does not appropriately extend
Ybarra v. Illinois
J. Stewart, 1979
The difference is one is being held and one is being frisked.
Dunaway v. New York
J. Brennan, 1979
Florida v. Rover
Supreme Court, 1983
Davis v. Mississippi
J. Brennan, 1969
Kaupp v. Texas
Supreme Court, 2003 (per curiam)
US v. Place
J. O’Connor, 1983
90 minute delay too long, unreasonable under the circumstances.
Movement – suspect or bags.
Length of detention – no bright-line rule but length of time can be a consideration
PROBABLE CAUSE
The Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Arrest Warrant:
Is the quantity of evidence any different? No but there is a difference of what of?
Spinelli v. US (1969)(Harlan, J)
•Working off of Aguilar, Court further explains the two inquiries regarding hearsay evidence:
–(1) Basis of knowledge and
–(2) Veracity
•How should Aguilar’s two-pronged test be applied?
After Gates, what is task of magistrate when asked by police for a warrant?
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”
Bottom line: totality of circumstances
Probable Cause v. Reasonable Suspicion:
Alabama v. White (1990)
•Probable cause, like reasonable suspicion, can be based upon hearsay – the only difference being the level of suspicion that must be established
Probable Cause, Reasonable Suspicion & Anonymous Tip:
Florida v. J.L. (2000)(Ginsburg, J)
•Anonymous tip must exhibit moderate indicia of reliability to justify stop and frisk.
•Gates analysis applies to reasonable suspicion calculation too
Probable Cause:
Massachusetts v. Upton (1984)
•Applying Gates, court found ex-girlfriend informant information sufficiently reliable to support “magistrate’s determination that there was a fair probability that contraband or evidence of crime would be found in [defendant’s] motor home.”
Probable Cause:
Maryland v. Pringle,
124 S.Ct. 795( 2003) (Rehnquist, CJ)
•Calculating probable cause at an arrest scene
–When does the officer have enough to arrest?
– Who can the officer arrest?
Challenging a search warrant:
Franks v. Delaware (1978)(Blackmun, J)
•Under limited circumstances, the Court permits a defendant to attack a facially valid search warrant after the search has occurred.
There is a presumption that an affidavit attached to a …a Frank’s Hearing – whether or not the information should be relied upon. False statement knowingly…reliance upon the false statement. If …proves preponderance of the evidence…
Second Part of Class Three:
Arrest Warrants and Related Matters
•Main Question: When and under what circumstances do police need an arrest warrant before they can arrest someone for a crime?
The Warrant Requirement of Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Arrest in a public place:
United States v. Watson (1976)(White, J)
•“The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact.”
Arrest in a public place:
Atwater v. City of Lago Vista (2001)(Souter, J)
•Officer has authority to arrest without a warrant for minor criminal offense committed “in his presence” (“breach of peace” not required)
PROBABLE CAUSE
Probable Cause depends on the judge you are in front of more than anything else. The Supreme Court says, fair probability that evidence of a crime will be found in a given location or that a particular person committed a particular crime. Illinois v. Gates. It’s the totality of circumstances, and it’s common sense. It’s not about hardened certainties it’s about probabilities. It is very fact specific. Gates says, use any of the factors from the Aguilar-Spinelli Tests that are applicable but you don’t have to go thru a rigid two-step process in order to determine whether or not you have Probable Cause.
You need to know the legal standard, the factors, the way the court approaches it but recognize that each court is going to be a little different. If you are prosecutors, err on the side of putting more in than less. If you are the defense attorney hope that the prosecutor puts in less so that you can get the evidence suppressed because of lack of Probable Cause.
ARREST WARRANTS
For an arrest of a felony in public you do not need an arrest warrant. Watson case. It is one of the few bright-line rules you have in this class.
Minor Offenses: Atwater v. City of Lago Vista. With regard to minor offenses, as long as it occurred in the officer’s presence, it doesn’t also have to involve a breach of the peace and the officer can arrest without a warrant.
ARREST IN THE HOME
Payton v. New York
Supreme Court, 1980, Stevens, J
Arrest in the Home: the Payton Warrant Requirement Rule.
Absent exigent circumstances, the police need a warrant to go into somebody’s house unless there is consent.
The Fourth Amendment is all about reasonableness and the Supreme Court is always looking for it. They want to make it so that the law is easy for the cops to understand. See also the Summers case.
If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. The Court in Payton noted that entry into a private home is an extreme intrusion and that an entry for the purpose of making an arrest is nearly as intrusive as an entry for a search. Therefore, the Fourth Amendment requires that a neutral and detached official certify that there is probable cause to make the arrest before this intrusion may take place.
A warrantless arrest made in violation of Payton will not prevent the defendant from being brought to trial (he can always be re-arrested after a warrant has been issued). The principal consequence of an invalid is likely to be that evidence seized during the arrest will not be admissible. Thus in Payton itself, the police entered Payton's residence to arrest him, and found a shell casing in plain view, which was later admitted against Payton at his trial. As a result of the Supreme Court's ruling that the warrantless entry was impermissible, the shell casing became inadmissible and a new trial was necessary.
If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain a warrant, no warrant is necessary, assuming the crime is a serious one.
ARREST IN A THIRD PARTY’S HOME
Steagald v. United States
Supreme Court, (1981)(Marshall, J)
The Steagald principle
Entry to arrest non-resident: The mere fact that the police are attempting to make an arrest does not by itself permit them to enter a private dwelling in search of the suspect. Thus where the police are not in hot pursuit, and there are no other exigent circumstances, they may not enter one person's private dwelling to arrest another, even if they are acting pursuant to an arrest warrant. Steagald v. U.S., 451 U.S. 204 (1981).
1. Facts of Steagald: In Steagald, federal agents learned from an informer that one Lyons, a federal fugitive, could probably be found at a certain address. They procured a warrant for his arrest (although the warrant did not mention the address); they entered the premises, and while searching for Lyons there, crane upon drugs belonging to Steagald, a resident of the house. (They did not find Lyons at all).
2. Holding: The Court held that the arrest warrant could not be used as legal authority to enter the home of a person other than the person named in the warrant. The Court's principal objection was that no neutral magistrate ever evaluated the police officers' probable cause to believe that Lyons would be found at Steagald's home. (The Court's opinion indicated that had the magistrate who issued the arrest warrant found that there was probable cause to believe that Lyons would be found at Steagald's house, there would have been no constitutional difficulty with searching for Lyons in that house.)
This case is only here because of the drugs they found against Steagald. This is about protecting the third party’s interests.
EXIGENT CIRCUMSTANCES
Warden v. Hayden
Supreme Court (1967)
• “Exigencies of the Situation” may authorize warrantless entry into house: Hayden version of “hot pursuit”
Warden v. Hayden, 387 U.S. 294 (1967) (supra, p. 53) police pursued a robbery suspect to a particular house (which later turned out to be his own). The suspect's wife answered the door, and the police asked for and received permission to search for “a burglar.” During their search, they looked for weapons which he Might have concealed, and found incriminating clothing in a washing machine. Held, the warrantless search was justified by the "hot pursuit" (regardless of the validity of the suspect's wife's consent to the search): “The police were informed that an armed robbery had taken place, and that the suspect had entered a certain house less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or fright use against them.”
There is a concern for the danger of the occupants of the home, danger to the suspect and danger to the police officers. This overrides the sanctity of the home.
The Court rejected the defendant's contention that the clothing seized from the washing machine was not validly seized because the police were not looking weapons in the washer; the Court found that the fact that the officer who looked in the washer testified that he was looting for the suspect or the money, was not dispositive of whether he had also been looking for weapons. The Court further stated that it did not decide the question whether the “hot pursuit” exception to the warrant requirement allowed only a search for the suspect and weapons.
Danger is not the only exigent circumstance but can include the destruction of evidence. A bad check writer could shred evidence in a hot pursuit situation. The Court says with regard to the hot pursuit situation, the Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would greatly endanger their lives and the lives of others. The interest here is a protection of the public and the officers.
The officers can use evidence that they find during the pursuit and the arrest. Once the police are inside they can seize things in plain view, they can do a protective sweep. Once you are arrested, the search incident to the arrest could come up as well.
Quote from page 369 by J. Brennan:
“An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.”
United States v. Santana
(1976)
• Hot Pursuit - Public Place to a Private Place
If the police are pursuing a felony suspect, and he runs into either his own or another’s dwelling, a warrantless entry may be permitted under the “hot pursuit” doctrine.
Minnesota v. Olson
Supreme Court, 1990
• The standard for determining whether exigent circumstances existed
The Supreme Court held that an overnight guest normally has a legitimate expectation of privacy in the home where he is staying. The police may not normally make a warrantless arrest or a warrantless search of the premises where the defendant is staying. If the owner consents to a search the guest is out of luck. Anything seized will be deemed the fruits of an illegal search.
The Four Ways To Get Exigent Circumstances:
1. Hot pursuit of a fleeing felon;
2. Eminent destruction of evidence;
3. Need to prevent the suspects escape; and
4. The risk of danger to police or to other persons inside or outside the dwelling.
The Minnesota Supreme Court concluded that no exigent circumstances were present. The court also thought that in the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present and that assessing the risk of danger, the gravity of the crime and the likelihood that the suspect is armed should be considered.
Brigham City v. Stuart
126 S. Ct. 1943 (2006)
• Was the gravity of the “exigency” or “emergency” sufficient to justify, under the Fourth Amendment, entry into the home to stop a fight?
Officers said they saw thru a screen door and window that a juvenile who was being held back by several adults broke loose and struck one of the victims so hard that they were spitting blood.
As long as the circumstances are viewed objectively to justify the action, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.
Corbett: It doesn’t matter what the officer’s subjective motivation is in pulling a car over as long as objectively evidence can be pointed to that reflects the legal justification for pulling the car over.
The full opinion of the case reveals that the police charged the adult with contributing to the delinquency of a minor. The officer’s were called to the house because of a loud party.
LIMITATIONS ON EXIGENT CIRCUMSTANCES
Exigency is not created just because you’ve arrested a person for a felony in front of their house. You can’t just go in and because you think exigent circumstances have been created.
Vale v. Louisiana
Supreme Court, 1970, Stewart
• Arrest on the street does not provide its own “exigent circumstances” so as to justify a warrantless search of arrestee’s house
The Court suggested that if the arresting officers knew that contraband or evidence was “in the process of destruction” when the search was begun, or if the officers knew that these items were “about to be removed from the jurisdiction,” then a warrantless search for these items would have been allowed.
EXIGENT CIRCUMSTANCES AND RELATED MATTERS
Segura v. United States
Supreme Court, 1984, Burger, CJ
• Warrantless entry of home and 19 hour occupation of it OK in order to prevent the destruction or removal of evidence while warrant secured
The general rule is: Get a warrant. The court will go very far in order to promote that rule.
Illinois v. McArthur
Supreme Court, 2001, Breyer, J
• Warrantless seizure of person and premises by prohibiting free access to residence while waiting for search warrant
If the police have reasonable cause to believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist.
The two hour securing of him and he premises while the police obtained a search warrant was reasonable. They had probable cause based on testimony that there were drugs in the house. The police would allow McArthur to go inside the house but they would accompany him every time.
LIMITATIONS ON EXIGENT CIRCUMSTANCES
Mincey v. Arizona
Supreme Court, 1978
• Extent of the so-called “homicide scene” exception to warrant requirement - provide “exigent circumstances”?
The defendant, in his own apartment, shot an undercover police officer and was shortly thereafter arrested by other officers. Homicide detectives then began an extensive warrantless search of the entire apartment, a search which lasted four days.
The fact that the place being searched is the scene of a recent murder or the scene of a serious crime is not by itself an exigent circumstance automatically justifying a warrantless search.
KNOCK AND ANNOUNCE
Richards v. Wisconsin
(1997)(Stevens, J)
• Officer’s obligation to knock and announce presence and purpose
Before a police officer can arrest somebody at his or her home he has to knock and announce who he is. A police officer can go in without knocking and announcing the presence and purpose if he has a reasonable suspicion of destruction of evidence or danger to the officers.
If you have a reasonable suspicion ahead of time you should build that into your affidavit that is attached to the arrest warrant in order to make it that much more clearer. That doesn’t mean that a reasonable suspicion of those things you just described couldn’t occur or arise at the time of arrival.
United States v. Banks,
124 S.Ct. 521 (2003) (Souter, J)
• How long must police wait before they can enter after announcing their presence and purpose?
Cocaine is easily disposable; therefore, after 15-20 seconds without a response, police could fairly suspect that any cocaine would be gone if they waited any longer. The fact that the defendant was in the shower and could not get to the door earlier is irrelevant, because what matters is the police’s actual belief about the danger of destruction of evidence, not the underlying reality (and the police had no reason to believe that the defendant was in the shower).
Corbett: The exigent circumstance of the destruction of evidence was created here. The police had a reasonable suspicion that evidence would be destroyed because it was a drug search warrant and the silence after the knock and announce is evidence to support the fact that evidence might be destroyed. It’s not about certainties, it’s about probabilities.
Hypo: What if the search warrant was for stolen pianos? How long do you the police have to wait? Can they wait two minutes? I don’t have the answer to this one but it might come down to reasonableness. What the court would say is anybody’s guess and that’s where the argument comes into play.
SEARCHES FOR EVIDENCE
When we first got together I emphasized how important it is to determine whether or not we even have a seizure under the Fourth Amendment. The Fourth Amendment applies to unreasonable searches and seizures. We have to have a seizure and we also have to have a search. And if what you have constitutes a search within the Fourth Amendment, then the Fourth Amendment is applicable. If it is not a search under the Fourth Amendment, then the Fourth Amendment is not applicable.
It is really important for you to decide ahead of time if you have a search under the Fourth Amendment.
Protected Areas and Interests: Threshold Question?
• What constitutes search within the meaning of the 4th Amendment?
• Importance: if what police did is not considered search, 4th Amendment does not apply (and hence, police not restricted)!
Webster’s Definition of “Search”
• “To go over or look through for the purpose of finding something; explore; rummage; examine.”
• One of our questions for today: How does the Supreme Court’s definition of “search” differ from Webster’s definition?
Once again, the 4th Amendment:
• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Under Katz we are going to find out that the person’s house, papers, and effects are not the key – it may be a part of the Fourth Amendment but the key is the Fourth Amendment protects people, not places.
SEARCHES
Protected Areas and Interests
Katz v. United States
(1967)(Stewart, J)
• What “a Person Knowingly Exposes to the Public, Even in His Own Home or Office, Is Not a Subject of Fourth Amendment Protection”; “What [a Person] Seeks to Preserve As Private, Even in an Area Accessible to the Public, May Be Constitutionally Protected.”
The government (P) thought that Katz (D) was transmitting from a public phone booth information related to illegal gambling activities. Although no warrant was sought or received, officers intercepted and recorded D's side of the phone conversations with an electronic listening device attached to the outside of the booth. At trial, over D's objections, these recordings were introduced as evidence. D was convicted. The appellate court affirmed. D appealed.
The case is not about phone booths and whether or not you have a reasonable expectation of privacy in a phone booth. This case is about Katz himself.
Listening to and recording phone conversations with an electronic listening device attached to the outside of a public phone booth is a "search and seizure" subject to 4th Amendment protections, and a search warrant is required. The Fourth Amendment is not confined to instances of actual physical trespass, rather the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements…without any ‘technical trespass under…local property law.'” The Fourth Amendment protects people rather than places, and thus its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. In order to determine a Fourth Amendment search and seizure violation there must be a violation of a person's reasonable expectation of privacy.
J. Harlan’s concurrence in Katz:
• What is his understanding regarding rule for determining whether particular police investigation activity constitutes search within meaning of 4th Amendment?
Katz v. US establishes that even communications which in some sense occur in “public” may be protected under the Fourth Amendment.
TWO FOLD REQUIREMENT/TEST:
Basically if:
1. The defendant had an actual (subjective) expectation of privacy about the communication; and
2. That expectation was one which society recognizes as reasonable
Then, the communication will be protected by the Fourth Amendment, even if it occurred outside of a private home or office.
Oliver v. United States
Supreme Court, 1984, Powell,
• An Open Field Is Not a Person, House, Paper, or Effect; therefore, open fields beyond the curtilage are not protected by the Fourth Amendment
The defendant has a large chunk of rural property. Acting on reports that marihuana was being raised on petitioner's farm, narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing" sign, but with a footpath around one side. The agents then walked around the gate and along the road and found a field of marihuana over a mile from petitioner's house.
This is not a search within the Fourth Amendment. Open fields are not "effects" within the meaning of the Amendment, the term "effects" being less inclusive than "property," and not encompassing open fields. The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the Amendment.
Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields.
Common law curtilage is defined by Professor Bretz as the area you mow. Curtilage is protected but an open field is not – no reasonable expectation of privacy.
*As the Court explained in United States v. Dunn (Footnote e, page 253), curtilage questions should be resolved with particular reference to Four Factors:
1. The proximity of the area claimed to be curtilage to the home;
2. Whether the area is included within an enclosure surrounding the home;
3. The nature of the uses to which the area is put; and
4. The steps taken by the resident to protect the area from observation by people passing by.
Dissenting Opinion, J. Marshall:
“Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the state in which the land lies is protected by the Fourth Amendment’s proscription of unreasonable searches and seizures.”
Florida v. Riley
Supreme Court, 1989, White, J, Four Justice Plurality
• Aerial Surveillance Not a Search Under Certain Circumstances
Police flew over Riley's (D) property in a helicopter, about 400 feet above the ground. They viewed D's partially covered greenhouse and observed marijuana plants inside. D was arrested and convicted based on this evidence. D appealed, claiming that the evidence should be suppressed as an unreasonable search. The Florida Supreme Court held that under the Florida Constitution, the state's (P) actions required a warrant. The US Supreme Court granted certiorari.
The five justice majority held that even a view taken by the police from a helicopter flying only 400 feet above the ground still fell within the “plain view” doctrine, and was therefore not a search.
Corbett: If any person can do it, the police can do it; hence, there is no reasonable expectation of privacy.
Rationale: Fixed-wing aircraft are limited by FAA Regulations to flying 1,000 feet or more above the ground (except on takeoff and landing). But no such limitation applies to helicopters - under FAA Regulations, helicopters can be operated at virtually any altitude as long as they pose no safety hazard. Four members of the Court seemed to conclude that as long as a police helicopter is flying where a member of public could fly a helicopter (i.e., visually at any altitude), no search would ever take place because the homeowner would have no reasonable expectation of being free from such overflights. (The plurality thought there flight be an exception if the helicopter was used to spot "intimate details" or caused "undue noise…dust or threat of injury," but neither factor was present here.) But the fifth member of the Court who believed that the flight at issue in Riley was not a search (justice O'Connor) believed that the fact that the flight was legal was not dispositive – for her, if a flight takes place at a level lower than members of the public generally fly, a homeowner will have a justifiable expectation of privacy, and the flight will be a ‘search’. However, O'Connor believed that the 400-foot level was not such a low altitude.
The Dissenters:
For the dissenters the issue was whether there was any real, practical likelihood that the public would fly where the police were flying, not whether the public had an abstract legal right to do so. Only if the public could be expected to fly where the police were flying, would defendant’s expectation of being free from such surveillance be “unreasonable.” The dissenters believed that the public does not commonly fly 400 feet above residences, so the police helicopter was not where it had a “plain view” of defendant’s house and there was a Fourth Amendment search.
Corbett: “We can talk about Riley your honor, but let’s count the votes. 5 of the 9 justices, which is a majority, say that the test should be whether or not the public regularly flies at this level. And if the public regularly flies at this level, then I am prepared to concede that my client has no reasonable expectation of privacy.” I can put pilots on the stand to testify that nobody flies at that height. Now I’m putting on evidence and I’m hopefully meeting my burden of proof to establish that my client’s expectation of privacy existed and was reasonable. It’s a lesson in counting the votes. Is it the law? It’s only the law if somebody argues it.
California v. Greenwood
Supreme Court, 1988, White, J
• Dumpster Diving - No Reasonable Expectation of Privacy in Garbage Placed by the Curb
Police suspected Greenwood (D) of drug trafficking. They asked the neighborhood's regular trash collector for the plastic bags that D had left on the curb in front of his house. They were searching the trash to gather enough evidence to obtain a search warrant for D's home. During the search they found cocaine and hashish. D was arrested on felony narcotics charges. The Superior Court dismissed the charges on the authority of People v. Krivda, which held that warrantless trash searches violate the 4th Amendment and the California Constitution. The Court of Appeals affirmed. The state (P) appealed.
The issue on appeal is whether or not this violates the Fourth Amendment.
Trash or other abandoned property will normally not be material as to which the owner has an objectively reasonable expectation of privacy. Therefore, the Supreme Court has held that, when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that trash without a warrant.
Rationale: The Court in Greenwood reasoned that regardless of whether the particular trash owner subjectively believes that his trash will remain private and unexamined, society should not and does not recognize that belief as “objectively reasonable.” Trash left at curbside is readily accessible to “animals, children, scavengers, snoops, and other members of the public,” so the owner cannot reasonably expect that it will remain private. Furthermore, the Court observed, when the owner puts the trash on the street for pickup, he is intentionally and voluntarily conveying it to a third party (the trash collector), who may himself sort through the trash.
Hypo: What if you kept the garbage near your garage? The test for a search is whether or not there is an actual subjective expectation of privacy and is society prepared to recognize it as reasonable? If you change the facts, you get a different outcome.
The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to installed at the telephone company's offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
The Bush Administration used the Smith case as their focus on why domestic surveillance is allowable. They have since sought approval under the Foreign Surveillance Intelligence Act (1978), a congressional statute, to seek the warrants for phone taps.
So, why should we be happy with Greenwood?
If a state doesn’t like the Greenwood opinion it could give its citizens more protection in the state’s constitution. In Indiana the police have to have reasonable suspicion that the garbage will contain evidence of a crime. A state cannot drop below the protection of the Constitution but it can give their citizens greater protection.
Bond v. United States
Supreme Court, 2000, Rehnquist, CJ
• The Wrongful Squeeze Case: Because a person manifests an actual expectation of privacy in the contents of his carry-on luggage and because society is prepared to recognize that expectation as reasonable, the physical manipulation of that luggage by federal agents violated a reasonable expectation of privacy and constituted a search
We can reasonably expect that society will move your bags, but we don’t expect that they will squeeze it. That takes us beyond what is reasonable.
The Use of Technology
United States v. Knotts
Supreme Court, 1983, Rehnquist, J.
• Use of an Electronic Beeper Tracking Device - “Augmenting Sensory Faculties” With “Science and Technology”
With the consent of a chemical company, police installed a beeper into a container of chloroform, a chemical used to manufacturer illicit drugs, prior to purchase. By a combination of visual surveillance and monitoring of the beeper signal the police tracked the container in a vehicle. On that evidence and other information, a search warrant was issued and a drug lab was discovered.
The Court held that the use of such a beeper to follow a vehicle on public roads does not violate the driver’s reasonable expectation of privacy.
Rationale: The Court reasoned that a driver voluntarily conveys to anyone who watches him the fact that he is traveling over particular roads in a particular direction to a particular destination; since the beeper merely supplied information that could have been received by ordinary plain-view surveillance; there was no Fourth Amendment violation. If the police officers could do it by simply following him, it does not matter that they used technology to enhance their ability.
United States v. Karo
Supreme Court, 1984
• Beepers, Part II - 4th Amendment Search if Reveals Information Within a Home
In 1980, a DEA agent learned from an informant that Karo (D) had ordered 50 gallons of ether for extracting cocaine from imported clothing. The government (P) obtained a court order authorizing the installation and monitoring of a beeper in an ether can. In early 1981, the ether cans were delivered to a house rented by D. By monitoring the beeper, DEA agents determined that the ether can was on the premises on February 6 and 7. On February 8, the agents received a search warrant for the house. On February 10, they searched D's house, seized cocaine, and laboratory equipment, and arrested D. The District Court invalidated both warrants. P appealed. The Court of Appeals affirmed as to the second warrant. P appealed.
RULE: The installation of a beeper does not violate the 4th Amendment, but the use of this beeper to acquire information that could not be witnessed from public viewing (inside the home) does violate the 4th Amendment if you don’t have a search warrant.
How do you get a search warrant if you don’t know where the tracking device is going? The Court concluded that it would suffice if the warrant were “to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper (probable cause), and the length of time for which beeper surveillance is requested.”
The government can get the authority to get a beeper placed inside a container. Once the court approves it, thru this kind of a warrant that the Court described in Karo, law enforcement can go inside of a home and they will be in compliance with the Fourth Amendment.
REVIEW
What is a search? If the activity the police are engaged in is a search under the Fourth Amendment, then the Fourth Amendment is applicable. How do you determine if it involves the Fourth Amendment? The short answer is: if it involves a reasonable expectation of privacy. The defendant has to exhibit a subjective, actual expectation of privacy and society is prepared to recognize as reasonable.
If the conduct involves a reasonable expectation of privacy, the police need a warrant, or consent, or exigent circumstances, or an exception (as the cases discussed below). If it does not involve a reasonable expectation of privacy, then as a constitutional matter, the police are not restricted via the Fourth Amendment.
We know from Oliver v. United States, an open field is an area where there is no reasonable expectation of privacy; therefore, the police can go there. An open field is any area outside the curtilege. Curtilege is defined in United States v. Dunn.
The presumption is to some extent that if it’s a house or curtilege area, it may be protected. Curtilege may not be protected depending on how open you are or what you may be doing. In Florida v. Riley the curtilege was visible from 400 feet. If the public can go there, so can the police.
Beepers are allowed to track cars but once it goes inside the house, you’d better have a warrant. The Court gave us an example of an alternative kind of warrant that might be useable (referenced on page 266, note c, and on the TWEN page).
There is a reasonable expectation of privacy that your luggage will not be squeezed.
SEARCHES
The Use of Technology
Dow Chemical Company v. US
(1986)(Burger, CJ)
• Aerial Surveillance with Photographic Magnification of an industrial open field.
The language of Dow Chemical:
• “It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”
If it’s generally available to the public, then the police can use it.
Rationale: The Court relied on the fact that the open areas here were not “immediately adjacent to a private home, where privacy expectations are most heightened.” Furthermore, the Court found these to be areas where defendant had not made “any effort to protect against aerial surveillance”
The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.
Outdoor property may apparently fall within the “curtilege” for purposes of ground-level observation yet not fall within it for purposes of “aerial” observation.
Kyllo v. United States
2001, Scalia, J
The growing marijuana with heat lamps case.
• Thermal Imaging Devices and the intimacy of any information from the home
When the government obtains special high-tech devices, not in general civilian use, and employs them from public places to gain “views” that could not be had by the naked eye. As a result of this case, the use of such devices will be considered a search requiring a warrant.
You have to have probable cause to use a thermal imager. The majority focused on, “The right of the people to be secure in their persons, houses, papers, and effects…”
The dissent, by Justice Stevens, relied on the distinction between “through-the-wall surveillance and off-the-wall surveillance.
Protected Areas and Interests:
United States v. Place
(1983)
• Dog Sniffs; Investigatory Techniques that Disclose Criminality and Nothing Else
The court gives four reasons why a dog sniff is not a search under the Fourth Amendment:
1. It only reveals the presence of contraband
2. Minimally intrusive
3. Open area outside
4. Public place
The Court reasoned that since a sniff test by a well-trained dog discloses only the presence or absence of narcotics, a contraband item, the sniff test does not compromise any legitimate privacy interest of the person whose possessions are being sniffed because no one has the right to possess contraband, and thus no right to object to the disclosure that someone is in the possession of contraband.
There is a high government interest in stopping the criminality that is associated with drugs. The Court is especially disinclined to interpret the Fourth Amendment that limits the law enforcement’s ability to do their job.
Illinois v. Caballes
125 S.Ct. 834 2005, Stevens, J
• “In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.”
The Test: Place and Caballes clearly mean that if the police use a dog to perform an odor test that merely determines whether contraband is present or not, no search takes place, because no information about a legally possessable substance is being revealed. However, these two canine-sniff cases do not answer the more general question of whether government may rely on a “plain odor” doctrine to run canine sniff tests in public places to find the existence of substances that may be legally possessed.
Hypo: Dog sniffing at a MSU game. If a dog hits on you, you may be seized. There has to be an individualized suspicion.
In situations where there is no particular basis for suspecting criminal activity – it’s not clear whether the use of the dogs to detect the telltale odor would constitute a Fourth Amendment search. A strong case can be made that this would be a Fourth Amendment search, because a person has a legitimate expectation of privacy as to a legally-possessable substance in his car that cannot be detected from the street by human senses.
SEARCH WARRANTS
• Assuming that Police Conduct Amounts to Search, What Restrictions Does the 4th Amendment Impose?
Short Answer: In Order for Search to Be Constitutional, 4th Amendment Requires Search Be Supported by Probable Cause and That Search Be Made Pursuant to Warrant or Some Exception to Warrant Requirements
Issuance of Search Warrants
• Issuance of Search Warrants Must Be by “Neutral and Detached” Magistrates
• Search Warrants Must Particularly Describe Place to Be Searched and Person or Things to Be Seized.
You must state with particularity: where it is and the items you wish to want to seize. That doesn’t mean that it has to have every minute detail, but it has to be fairly particularized to the point where it limits the officer’s discretion. You can’t just say: search for any and all evidence. If it’s a drug case, you have to list things pertaining to drugs. If it’s a fraud case, you have to list things pertaining to the fraud case and not just any and all potential evidence. The search warrant has to have a sufficient enough detail of particularity so that the scope of the search is limited.
United States v. Grubbs
126 S.Ct. 1494 (2006) (Scalia, J)
• “Anticipatory warrants are, therefore, no different in principle from ordinary warrants.”
Just because the search warrant was saying: you can search when the delivery of the child porn occurs doesn’t mean that it’s any different in principal from all search warrants. All search warrants are saying: we’re giving you the search warrant now based upon probable cause of what will be the case when the search warrant is executed.
The Court said: just because it’s a little different doesn’t mean that it’s different from other search warrants that we have approved in the past.
When an anticipatory warrant is issued, the fact that the contraband is not presently at the place described is immaterial, so long as there is probable cause to believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different in principle from ordinary warrants: They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met, but also to the likelihood that the condition will be met, and thus that a proper object of seizure will be on the described premises. Here, the occurrence of the triggering condition—successful delivery of the videotape—would plainly establish probable cause for the search, and the affidavit established probable cause to believe the triggering condition would be satisfied.
EXCEPTIONS TO THE WARRANT REQUIREMENT
We’ve already talked about some exceptions to the warrant requirement:
Exigent circumstances; and
Terry-type searches
T-CHEAPS
Terry-type stop
Consent
Hot Pursuit
Exigent Circumstances
Auto or Vehicle Exception
Plain View
Search Incident to Lawful Arrest
• Questions to Keep in Mind:
What is the Trigger for the Exception, i.e., What Circumstances Bring It Into Play?
Example: Trigger for searching a vehicle exception: Probable cause that evidence of a crime is found in the car.
What Is Physical Scope of Exception, i.e., Where Can They Look and What Can They Look for?
How Long Does Exception Last, i.e., Any Time Limits?
What Is the Rationale Behind Exception?
Example: Rationale behind vehicle Exception: Ready mobility of a vehicle and reduced expectation of privacy.
United States v. Robinson
(1973)(Rehnquist, J)
• Search of a Person Incident to Arrest
• Bright-line Rule: Based upon an arrest, can do a search
FACTS: On April 23, 1968 Officer Jenks observed Robinson (D) driving a 1965 Cadillac in DC around 11:00 PM. Jenks had checked D's operator permit four days earlier, and had reason to believe that D was driving without a license. He pulled D over and arrested him for operation after license revocation and obtaining a permit by misrepresentation.
Officer Jenks had probable cause to arrest Robinson and he affected a full custody arrest. Officer Jenks followed police department procedures and searched D for weapons. While searching D, he felt an object in D's coat. He could not tell what it was, but did not think it was a weapon. He pulled out a crumpled cigarette package. He felt something inside the package, which he could tell were not cigarettes. Jenks opened the package and found 14 gelatin capsules inside which contained heroin. The heroin was admitted into evidence at the trial which resulted in defendant’s conviction in District Court. The Court of Appeals reversed the conviction, holding that the heroin introduced had been obtained as a result of a search, which violated the 4th Amendment to the United States Constitution. P appealed.
The body search of Robinson was conducted according to police department regulations, which required that any time a person is stopped for a “full-custody arrest” (i.e., an arrest where he is to be taken to the police station for booking), a full-body search should be conducted.
Holding: The Supreme Court held that the body search was valid under the search-incident-to-arrest exception. The Court stated that such a body search would be allowable in any situation in which a "full-custody" arrest occurs. "In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment."
Rationale: The Court based its holding largely on the right of the police to protect themselves by looking for weapons concealed on the person of the arrestee. The majority rejected the contention that because the arrest was for a minor traffic violation, the suspect was very unlikely to have dangerous weapons on him; the Court cited the fact that “approximately 30% of the shootings of police officers occur when officer approaches a person seated in a car.”
Later judicial second-guessing undesirable: The majority also relied on the fact that the officer's decision to check for concealed weapons is a “quick ad hoc judgment.” The Court stated that "The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect."
Car not searched: The vehicle in Robinson was not searched. The Court implied that a search of the vehicle would not, even in the custodial arrest case, be justified by the incident-to-arrest exception, presumably since the driver is usually made to get out of the vehicle before being searched, and is then taken to the police station without returning to the car.
Effect of Robinson: Robinson seems to stand for the proposition that any time a traffic or other arrest is made, a full bodily search may be conducted incident to that arrest, as long as the arrest is “custodial,” i.e., as long as the arrestee will be taken to the station house for booking.
No subjective fear required: The search does not have to be made specifically for weapons, nor does the officer have to have a “subjective fear” that the suspect is armed (the arresting officer in Robinson testified that he did not have such fears, and was merely looking for evidence).
Dissent: Marshall (joined by Douglas and Brennan) The major point of the dissent was that it perverted the previous rationale for the search-incident-to-arrest exception, which was to allow a search for weapons. The dissent conceded that the officer in Robinson had the right to frisk for hard objects which might be weapons, but asserted that once it was clear that there were no hard objects which could be weapons, the officer had no reason to inspect a soft package. The dissent suggested that the officer could in any case have held on to the package, without opening it, and obtained a warrant for opening it later.
The trigger for this exception is a lawful arrest based upon probable cause
The physical scope of this exception is the full person.
They can look for evidence.
How long did it last?
What is the rationale?
Bright Line Rule: Even though the probable cause stems from a driving offense, the police can use the probable cause from that offense to ultimately introduce evidence such as drugs.
Atwater v. City of Lago Vista,
532 US 318 (2001)(Souter, J)
• Fourth Amendment does not prohibit custodial arrest of a person for a minor, “fine-only” offense; once arrested the officer is authorized to conduct search incident to arrest
Atwater P was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt which was in violation of Texas law. Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled P over. The officer could have issued a traffic citation but instead he takes the defendant into custody which was allowable under the statute. She’s arrested and searched at the local police station.
According to the Supreme Court, this didn’t violate the Fourth Amendment.
Souter’s Bright Line Rule: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”
The problem is an officer on the street would sometimes not be able to tell which category an offense falls into, such as the amount of drugs, or if this was a repeat offender with multiple convictions – no longer a minor fine only offense.
The dissent warned that the majority’s approach would heighten the risk of harassment, especially of racial minorities.
Chimel v. California
(1969) (Stewart, J)
• Setting the parameters of a search incident to a lawful arrest: arrest warrant, without more, does not authorize search of entire premises where defendant arrested.
Police officers came to the home of the defendant, who was suspected of having robbed a coin shop. The police had an arrest warrant, but no search warrant. After arresting the defendant, the police conducted a full-scale search of the entire premises while the defendant’s wife was present.
Holding: The Court found the search to have been invalid, because it was unnecessarily widespread. The Court recognized the police's right to search the area within the defendant's immediate control, but held that the portion of the premises outside of that control could not be warrantlessly searched incident to arrest.
Rationale: The Court explained its holding in the following language: “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area “within his immediate control” – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching rooms other than that in which an arrest was justified, however, for routinely searching rooms other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant”
Dissent: A dissent, by Justice White (joined by Justice Black), argued that “assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search." In Chimel itself, for instance, argued the dissent, if the police had left the defendant's house to procure a warrant after the arrest, “it seems very likely that petitioner's wife, who in view of petitioners generally garrulous nature must have known of the robbery, would have removed the coins."
Arrest as exigent circumstance: The dissent agreed with the majority that as a general rule, search warrants are required. But the dissent contended that an arrest in a case where evidence might be destroyed constituted an “exigent circumstance.”
Vale v. Louisiana
Stewart, J, 1970
• Arrest on the street in front of house is not within immediate vicinity of inside of house justifying search of house on basis of search incident to arrest exception.
Officers possessing warrants for Vale's (D) arrest had information that D was residing at a specified address. They drove to the address in an unmarked car and set up surveillance of the house. The officers were convinced a narcotics sale had taken place. After informing D of his constitutional rights, the officers found narcotics in a bedroom. The Louisiana Supreme Court held that the search of the house did not violate the 4th Amendment because it occurred in the immediate vicinity of D's arrest. D appealed.
“A search may be incident to an arrest ‘only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’ If a search of a house is to be upheld incident to an arrest, that arrest must take place inside the house, not somewhere outside – whether two blocks away, twenty feet away, or on the sidewalk near the front steps. ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.’ That basic rule has never been questioned in this Court.”
Washington v. Chrisman
(1982)(Burger, CJ)
• “Grabbing Area” of a Suspect Changes if the Arrestee Moves
A student was observed by a police officer to be carrying liquor while leaving a dormitory. The police officer arrested the student and accompanied him back to the dormitory for his ID and waited in the doorway. While waiting, the police officer saw seeds and a pipe 10 feet away and entered the room and arrested the roommate.
Rationale: The Court reasoned that the mere possibility that the student might escape or gain access to a weapon in the room was enough to permit the police officer to stay with him. Since the officer had a right to be there, anything in plain view could be used as evidence.
Thornton v. United States
124 S Ct 2127 (2004) (Rehnquist, CJ)
• Affirming the Belton search incident to an arrest exception, the Court states: “[W]hile an arrestee’s status as a ‘recent occupant’* may turn on his temporal and spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him.”
Bright Line Rule: Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment as well as any containers found within the passenger compartment contemporaneously incident to the arrest.
Does it include going into the trunk? In Belton they said no, but in 1981 they didn’t have keyless entry. I could see the Supreme Court coming out and saying that it does include the trunk nowadays.
Recent Occupant: As the result of Thornton, the police may search a vehicle’s passenger compartment of a recently-vacated car even though the initial confrontation between the officer and the arrestee has taken place outside the car.
Knowles v. Iowa
(1998)(Rehnquist, CJ)
• Belton Rule Applies to a Search Incident to a Custodial Arrest, and Not to a Car Search Incident to the Issuance of a Traffic Citation.
Cases allowing searches incident to arrest have been premised on the need to: (1) protect officer safety; and (2) avoid the hiding or destruction of evidence. Neither of these rationales applies to the traffic ticket situation.
In a typical traffic stop, all the needed evidence has already been gathered by the time the car has been stopped
If the police officer is just going to give a citation, rather than an arrest, you don’t have the concerns that are associated with an arrest.
Schmerber v. California
(1966)(Brennan, J)
• Blood Test of Drunk Driver - Permissible as Search Incident to Arrest?
The Court indicated that the incident to arrest exception would not have applied to a drawing of a blood sample pursuant to a drunken driving arrest, except for the fact that the blood-alcohol content of the defendant would have dropped so much in the time necessary to procure a warrant that the test would no longer have been useful.
Whren v. United States
(1996)(Scalia, J.)
• “Probable Cause” and “Pretextual” Police Conduct
If the officer has probable cause to pull someone over and the officer sees drugs in the car, a search incident to a pretextual arrest is nonetheless lawful, as long as the police in fact had probable cause to believe that the person arrested had committed a crime for which the arrest was allowed under local law.
Vehicle Exception
With the vehicle exception, identify your probable cause. You can only go as far as the probable cause takes you.
California v. Carney
471 U.S. 386 (1985)(Burger, CJ)
• VEHICLE EXCEPTION: Does it extend to vehicles parked on public property? Are motor homes within the exception?
The police can search a vehicle once they have probable cause based upon a vehicle’s reduced expectation of privacy and ready mobility.
There is a reduced expectation of privacy stemming from the vehicle’s use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.
For determining whether a search warrant is needed for a motor home we look at:
1. Its location;
2. whether readily mobile;
3. elevated on blocks;
4. licensed;
5. connected to utilities; and
6. access to a public road.
It can also apply to a boat or even a bike (used in a previous exam).
Chambers v. Maroney
399 U.S. 42 (1970)
• What is required to search a vehicle without a warrant? “Probable cause to search a particular auto for particular articles.”
The defendant was an armed robbery suspect whose getaway car was stopped by the police shortly after the robbery. The car was driven to the station where it was warrantlessly searched, and incriminating evidence was found.
The Court held that the search was valid, despite the fact that, since the car was in police possession, a warrant could have been procured without endangering the preservation of evidence.
United States v. Johns
469 U.S. 478 (1985)
• Delay in searching contents of item seized pursuant to Automobile Exception.
Customs agents approach trucks in a private airstrip upon suspicion of marijuana. The agents smell marijuana and see packages in the truck similar to those used to pack marijuana. The agents seize the trucks and take them back to their headquarters. They search the trucks without a warrant pursuant to the vehicle exception.
The central issue was whether the warrantless search was permissible in light of the fact that the packages were not opened until three days after the packages were removed from the trucks.
The Court said that three days was not too long but law enforcement cannot indefinitely retain vehicles before they complete a search.
California v. Acevedo
(1991) (Blackmun, J)
• Container in a vehicle subject to a warrantless search so long as officers have probable cause to search the container
Police saw defendant leaving a house with a paper bag similar to one they had seen earlier containing marijuana. Defendant put the bag in his car’s trunk and drove away. The officers then stopped the defendant and searched the trunk for the bag, even though they lacked probable cause with respect to the car itself, and lacked a warrant.
By a 6-3 vote, the Court held that the police conduct here was proper. The police’s right to conduct a warrantless search of containers in a car should apply not only where their probable cause relates to the car as a whole, but also where their probable cause extends only to the container itself.
Corbett: The police have probable cause of drugs in the trunk, which allows them to search the trunk only. Whatever your probable cause is, that’s how far your search takes you.
Hypo: The officers open the trunk and there are 100 bags that look similar. Some bags contain other illegal items and if found can be used as evidence.
What if I open the trunk and there is a full-auto AK next to the bag? I was within the scope of the search; therefore, I can take them.
What if I go into the trunk and the bag is not there? It may justify being able to go into the passenger compartment.
What if I open the trunk, see the bag and it contains drugs. Pursuant to the vehicle exception I cannot search the rest of the vehicle. However, I now have probable cause to arrest and search the passenger compartment but that issue was not before the Court.
Acevedo gives us a clear understanding of the language of the Court: “The police may search without a warrant if their search is supported by probable cause. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.”
Wyoming v. Houghton
(1999)(Scalia, J)
• Police officer with probable cause to search a car may inspect passenger’s belongings found in the car that are capable of concealing the object of the search
It includes a bag but not the person. If the driver has drugs in his pocket, the police have probable cause that more drugs are in the car. From the vehicle exception perspective the police can search anywhere in the vehicle where drugs could be located including the back seat and any purses or bags that belong to the passenger(s). It doesn’t matter whom it belongs to, it’s a place where drugs could be located.
Consent Searches
Schneckloth v. Bustamonte
412 U.S. 218 (1973)(Stewart, J)
From totality of circumstances, was consent voluntarily given and not the result of duress or coercion, express or implied?
The way to make consent constitutionally permissible under the Fourth Amendment is that it has to be voluntary according to the totality of circumstances.
Does the suspect have to be informed of his right to refuse? No because if police do not have probable cause, it may be the only way to get important and reliable evidence. The Court is going to allow it because it might not get the evidence otherwise.
124 S Ct 2127 (2004) (Rehnquist, CJ)
• Affirming the Belton search incident to an arrest exception, the Court states: “[W]hile an arrestee’s status as a ‘recent occupant’* may turn on his temporal and spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him.”
Bright Line Rule: Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment as well as any containers found within the passenger compartment contemporaneously incident to the arrest.
Does it include going into the trunk? In Belton they said no, but in 1981 they didn’t have keyless entry. I could see the Supreme Court coming out and saying that it does include the trunk nowadays.
Recent Occupant: As the result of Thornton, the police may search a vehicle’s passenger compartment of a recently-vacated car even though the initial confrontation between the officer and the arrestee has taken place outside the car.
Knowles v. Iowa
(1998)(Rehnquist, CJ)
• Belton Rule Applies to a Search Incident to a Custodial Arrest, and Not to a Car Search Incident to the Issuance of a Traffic Citation.
Cases allowing searches incident to arrest have been premised on the need to: (1) protect officer safety; and (2) avoid the hiding or destruction of evidence. Neither of these rationales applies to the traffic ticket situation.
In a typical traffic stop, all the needed evidence has already been gathered by the time the car has been stopped
If the police officer is just going to give a citation, rather than an arrest, you don’t have the concerns that are associated with an arrest.
Schmerber v. California
(1966)(Brennan, J)
• Blood Test of Drunk Driver - Permissible as Search Incident to Arrest?
The Court indicated that the incident to arrest exception would not have applied to a drawing of a blood sample pursuant to a drunken driving arrest, except for the fact that the blood-alcohol content of the defendant would have dropped so much in the time necessary to procure a warrant that the test would no longer have been useful.
Whren v. United States
(1996)(Scalia, J.)
• “Probable Cause” and “Pretextual” Police Conduct
If the officer has probable cause to pull someone over and the officer sees drugs in the car, a search incident to a pretextual arrest is nonetheless lawful, as long as the police in fact had probable cause to believe that the person arrested had committed a crime for which the arrest was allowed under local law.
Vehicle Exception
With the vehicle exception, identify your probable cause. You can only go as far as the probable cause takes you.
California v. Carney
471 U.S. 386 (1985)(Burger, CJ)
• VEHICLE EXCEPTION: Does it extend to vehicles parked on public property? Are motor homes within the exception?
The police can search a vehicle once they have probable cause based upon a vehicle’s reduced expectation of privacy and ready mobility.
There is a reduced expectation of privacy stemming from the vehicle’s use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.
For determining whether a search warrant is needed for a motor home we look at:
1. Its location;
2. whether readily mobile;
3. elevated on blocks;
4. licensed;
5. connected to utilities; and
6. access to a public road.
It can also apply to a boat or even a bike (used in a previous exam).
Chambers v. Maroney
399 U.S. 42 (1970)
• What is required to search a vehicle without a warrant? “Probable cause to search a particular auto for particular articles.”
The defendant was an armed robbery suspect whose getaway car was stopped by the police shortly after the robbery. The car was driven to the station where it was warrantlessly searched, and incriminating evidence was found.
The Court held that the search was valid, despite the fact that, since the car was in police possession, a warrant could have been procured without endangering the preservation of evidence.
United States v. Johns
469 U.S. 478 (1985)
• Delay in searching contents of item seized pursuant to Automobile Exception.
Customs agents approach trucks in a private airstrip upon suspicion of marijuana. The agents smell marijuana and see packages in the truck similar to those used to pack marijuana. The agents seize the trucks and take them back to their headquarters. They search the trucks without a warrant pursuant to the vehicle exception.
The central issue was whether the warrantless search was permissible in light of the fact that the packages were not opened until three days after the packages were removed from the trucks.
The Court said that three days was not too long but law enforcement cannot indefinitely retain vehicles before they complete a search.
California v. Acevedo
(1991) (Blackmun, J)
• Container in a vehicle subject to a warrantless search so long as officers have probable cause to search the container
Police saw defendant leaving a house with a paper bag similar to one they had seen earlier containing marijuana. Defendant put the bag in his car’s trunk and drove away. The officers then stopped the defendant and searched the trunk for the bag, even though they lacked probable cause with respect to the car itself, and lacked a warrant.
By a 6-3 vote, the Court held that the police conduct here was proper. The police’s right to conduct a warrantless search of containers in a car should apply not only where their probable cause relates to the car as a whole, but also where their probable cause extends only to the container itself.
Corbett: The police have probable cause of drugs in the trunk, which allows them to search the trunk only. Whatever your probable cause is, that’s how far your search takes you.
Hypo: The officers open the trunk and there are 100 bags that look similar. Some bags contain other illegal items and if found can be used as evidence.
What if I open the trunk and there is a full-auto AK next to the bag? I was within the scope of the search; therefore, I can take them.
What if I go into the trunk and the bag is not there? It may justify being able to go into the passenger compartment.
What if I open the trunk, see the bag and it contains drugs. Pursuant to the vehicle exception I cannot search the rest of the vehicle. However, I now have probable cause to arrest and search the passenger compartment but that issue was not before the Court.
Acevedo gives us a clear understanding of the language of the Court: “The police may search without a warrant if their search is supported by probable cause. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.”
Wyoming v. Houghton
(1999)(Scalia, J)
• Police officer with probable cause to search a car may inspect passenger’s belongings found in the car that are capable of concealing the object of the search
It includes a bag but not the person. If the driver has drugs in his pocket, the police have probable cause that more drugs are in the car. From the vehicle exception perspective the police can search anywhere in the vehicle where drugs could be located including the back seat and any purses or bags that belong to the passenger(s). It doesn’t matter whom it belongs to, it’s a place where drugs could be located.
Consent Searches
Schneckloth v. Bustamonte
412 U.S. 218 (1973)(Stewart, J)
From totality of circumstances, was consent voluntarily given and not the result of duress or coercion, express or implied?
The way to make consent constitutionally permissible under the Fourth Amendment is that it has to be voluntary according to the totality of circumstances.
Does the suspect have to be informed of his right to refuse? No because if police do not have probable cause, it may be the only way to get important and reliable evidence. The Court is going to allow it because it might not get the evidence otherwise.
REVIEW
Vehicle Exception: Once the officer has probable cause, you can take your search as far as the probable cause takes you. If there is probable cause that there are drugs in the car, the officer can search anywhere in the vehicle that drugs might be. On the other hand, if the officer has probable cause that a brown paper bag with drugs was placed in the trunk, the officer can search the trunk for the brown paper bag pursuant to the vehicle exception. Again, you don’t need a warrant for this; it is based on probable cause.
The vehicle exception applies to motor homes. If he motor home is more like a home, an officer will need a warrant or some exception to the warrant requirement. The rationale: It’s based upon the ready mobility as well as the reduced expectation of privacy that individuals have in a vehicle.
Consent Searches: Schneckloth v. Bustamonte, the test is totality of circumstances – the court said look at everything. You do not have to be told you can refuse consent and that is a factor in the totality of circumstances. Whether you are in custody or not is a factor. The environment in which the request was made and the educational level/intelligence level of the individual is a factor. Was there a vulnerable state of mind that the consenter presently had? Was there any kind of force used – overt or covert? Was there any kind of implied threat? All of these factors come into play in determining whether or not an individual has, under the circumstances, given a voluntary consent. If you voluntarily consent, then of course you’ve got a consent that is reasonable under the Fourth Amendment and the evidence that follows therefrom is admissible.
Florida v. Bostick
(1991)
“Doesn’t the ready discovery of incriminating evidence pursuant to the ‘consent’ of a person who has denied his guilt manifest that the consent must have been involuntary?”
Why would a person with incriminating evidence consent to a search? The Supreme Court responded that such an “argument cannot prevail because the ‘reasonable person’ test presupposes an innocent person.” KLI 454, note 6.
If the question was about a reasonable guilty person, then the question would have some merit, but it’s not – it’s about a reasonable innocent person. The voluntariness question focuses on how a reasonable “innocent” person would respond. Just because you feel anxiety does not mean that is rises to the level of involuntariness for purposes of the Supreme Court’s perspective on this question of “under the totality of circumstances” – the ability to consent voluntarily.
This whole question of what is consent and voluntariness are terms of art that are heavily influenced by the courts perception of law enforcement needs.
KLI Page 453, Note 2: Claim or show of authority. If a police officer says, you got to give us consent because we are going to get a search warrant anyhow so you’d better consent. Under the totality of the circumstances for voluntariness the impact would be great. “Where there is coercion there cannot be consent” – it could overcome the involuntariness. If the officer smells pot, he can say that he could get a warrant based on probable cause. Probable cause is not based in hard certainties, it’s based upon probabilities.
KLI Page 454, Note 4: Prior illegal police action. If there is a constitutional violation before the consent occurs, the subsequently obtained consent may be ineffective.
Florida v. Jimeno
(1991)
• Scope of consent is measured by “objective” reasonableness – “what would the typical reasonable person have understood by the exchange between the officer and the suspect?”
This is not obvious in how it will apply in all circumstances. In this case, the police got consent to search a car for drugs. What about a locked briefcase? They can ask for a key. There is a limit as to how far the consent can go.
If give consent voluntarily, you can revoke consent at any time. Will he stop? Theoretically he is supposed to and the Supreme Court seems to think that he should. There is not a lot of case law on this mostly by the lower courts.
Consent Searches Based Upon Third Party Consent
Georgia v. Randolph
(2006)(Souter, J)
• Can police rely on the consent to search a home when another present “cohabitant” objects?
Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. One tenant is not superior over the other tenant. The police are not required to “seek” consent from the other cohabitant. If cohabitant or co tenant is home asleep or at work, the officer does not need to seek consent from the cotenant. The police cannot create a situation to seek consent either.
The state has the burden to prove that this person had actual authority over the premises to give consent. If the police officer objectively believed that the person who gave the consent had authority to do so, as long as the mistake was reasonable, then the search is valid.
Exigent circumstances will allow a police officer to get in, i.e. domestic violence cases or emergencies.
PLAIN VIEW Exception:
• If officer lawfully present, he may observe certain items not within the “immediate control” of the arrestee or not within the scope of the lawful reason for being present which will nonetheless be subject to warrantless seizure.
Present Plain View Requirements:
• Officer Lawfully Present wherever he happens to be. Public street, inside a house because of a search warrant, exigent circumstances, etc.
• Officer Has Lawful Right of Physical Access. The issue in the Hicks case.
• Incriminating Character of Item Immediately Apparent. The probable cause nature of the item exists and gives the officer authority to seize it.
Warrant Exceptions - Plain View Doctrine:
Arizona v. Hicks
480 U.S. 321 (1987)(Scalia, J)
• The Plain View Doctrine at work: Movement of an object in plain view to permit further investigation may result in new search (where PC is needed – without which the search may be unlawful).
A shooting was reported in an apartment building. Officers went to the apartment that the shots came from to search for the shooter, weapons, and for any victims. They found and seized three guns and a stocking-cap mask. They also saw expensive stereo equipment, and the officer had a reasonable suspicion that the equipment was stolen since it was out of place for the run down apartment. He moved the equipment around to search for serial numbers, which he found and called in to his headquarters. It was confirmed that the items had been stolen in armed robberies. D was arrested and convicted for armed robbery and now appeals.
The plain view doctrine does not allow a party to search on a reasonable suspicion.
The officer's moving of the equipment was a search separate and apart from the search for the shooter, victims, and weapons, which was the lawful objective of his entry into the apartment. Inspecting the visible parts of the equipment without touching would have been permissible under the plain view doctrine.
Hypo: An officer has a valid search warrant for stolen TV sets. The officer opens up the closet and sees bails of marijuana. The officer can take the marijuana because the search warrant would allow him to search a closet. He has a right to be there and the marijuana is in plain view.
Part 2: In the bedroom is a jewelry box. He opens the box and sees cocaine. The scope of the search would limit the officer to look in the jewelry box.
Part 3: If the search warrant said look for any and all TV sets and paperwork and then the officer looked in the jewelry box, then that might create a credibility question with the judge. Arguably yes but probably not.
Part 4: On top of the dresser was a counterfeit Rolex watch. Although the officer is lawfully present, the probable cause seems to be missing.
Part 5: An officer walking on the street sees behind a screen a marijuana plant. It wouldn’t be too hard to get a warrant. He could also ask for consent.
Part 6: The officer sees the guy watering his plant and he notices the police officer so he grabs the plant and takes off. The exigent circumstances would allow the officer to enter (potential destruction of evidence) even if he was just moving the plant for more sun. The officer doesn’t have to right; he just has to be reasonable.
SPECIAL NEEDS SEARCHES
These searches are non-criminal in nature; they are civil searches in general. Sometimes it is the public school official or the public employer that is doing some kind of a search. Read the introduction on page 439. No individualized suspicion is needed at all. Unlike Terry where we’ve got reasonable suspicion to justify the behavior as it pertains to stopping and frisking, or as it extends to the car in Long or as it extends to the house in Buie, that all involves individualized suspicion and generally involves a criminal investigative type of search.
These special needs types of searches are civil and no individualized suspicion is involved at all. All the court has told us is that, what you need to look to, to determine whether or not it’s constitutionally permissible is this Reasonable Balancing Test – they weigh the government interest against the degree of intrusiveness. If the government interest outweighs the degree of intrusiveness, then it considered to be potentially reasonable.
Chandler v. Miller excerpt: See TWEN page.
These intrusions are searches under the Fourth Amendment. The question becomes, are these searches reasonable? General Rule: To be reasonable under the Fourth Amendment the search ordinarily must be based upon some kind of individualized suspicion of wrongdoing. But exceptions to the main rule are sometimes warranted under special needs – needs beyond the needs of normal law enforcement. Special needs are concerns other than crime detection.
It is clearly intrusive and it is clearly a search. When it is a special need, we take up this “context specific inquiry” (totality of circumstances). If the facts are slightly different
the outcome might be x but it might be y. If the GI outweighs the DI, the government wins. In Chandler v. Miller the government looses.
Giving your ID to an airline is ok under the Constitution. It is ok to require individuals to give up their identification especially since there are alternative ways to travel.
Safety Inspections
Camara v. Municipal Court
387 US 523 (1967)
• When the Court determines that “special needs” exist, it evaluates the government activity - the special need - by the “reasonableness” balancing standard.
Camara created the reasonableness balancing test in the context of civil searches where you don’t have to have any individualized suspicion. Terry was the criminal case (decided in the same year) that used the reasonable balancing test in the context of criminal searches where you do have to have individualized suspicion.
In order to obtain a warrant, the inspector does not have to demonstrate probable cause to believe that a violation of an ordinance within his domain will be discovered in the premises to be searched.
Balancing Test: Weighing society’s interest in conducting the inspections against the individual’s interest in resisting intrusion. Because such inspection programs are generally publicly accepted, and because they are the only canvassing technique which would achieve acceptable results, and because the intrusion is relatively limited, the Court decided that the balance should be weighed in favor of society, and probable cause is not required.
Inventory Search
Illinois v. Lafayette
462 U.S. 640 (1983)(Burger, CJ)
• Arrest Inventories: Police may search an arrested person, as well as his personal effects, including containers, as part of a routine inventory at police station, incident to his booking and jailing.
Defendant was arrested for breach of peace, and was not searched incident to his arrest but was searched at the police station and a shoulder bag belonging to defendant contained drugs. The Supreme Court said that he could have been searched when arrested and that the search was reasonable and lawful because it was done pursuant to a routine inventory procedure.
The police department can be required to use less intrusive means by the state. (Ceiling/Floor analogy)
Colorado v. Bertine
479 U.S. 367 (1987)(Rehnquist, CJ)
• Inventory Inspections: Discretion regarding whether to conduct an inventory permissible as long as it is exercised according to standard criteria.
A police officer arrested Bertine (D) for driving his van while under the influence of alcohol. After D was taken into custody but before a tow truck arrived to take the van to an impoundment lot, another officer, acting in accordance with police procedure, inventoried the van's contents. Included in this inventory were the contents of a backpack found in the van. The backpack search yielded various controlled substances, cocaine paraphernalia, and a large amount of cash. D objected to this search. The court determined that the search did not violate his rights under the U.S. Constitution, but it violated his rights under the Colorado (P) State Constitution. The Colorado Supreme Court affirmed, but premised its ruling on the Federal Constitution. The United States Supreme Court granted certiorari.
Holding: The warrantless inventory of an impounded vehicle may include the entire vehicle, including a search of the contents of closed containers found inside the vehicle.
Reasoning: Such inventory searches protect the property from being stolen or damaged, protect PO from false claims of theft or vandalism, and may protect PO’s safety because of weapons, bombs, etc.
Conditions Imposed: (1) That the police follow standardized procedures, so that the individual searching officer does not have unbridled discretion to determine the scope of the search; and (2) That the police not have acted in bad faith or for the sole purpose of investigating.
Government interest outweighs the degree of intrusiveness in the usage of an inventory search exception. It does not require individualized suspicion and is reasonable. Just because you get criminal evidence out of one of these special needs searches does not mean that it is not from the outset, a special needs type of search.
Inventory Search:
Florida v. Wells
495 U.S. (1990)
• Inventory search of locked suitcase in trunk not authorized as inventory search unless department procedures exist regarding the opening of closed containers.
Border Searches
It is ok to search at the border without any individualized suspicions whatsoever. It is reasonable under the single fact that: The person or item in question has entered into this country from the outside.
United States v. Ramsey
(1977)
• Search “reasonable” based upon “single fact that the person or item in question had entered the country from the outside”
–For a discussion on length of detention at border, see United States v. Montoya de Hernandez (1985) Defendant held at the border until she had a bowel movement upon the suspicion of drugs.
As for non-routine border inspections, lower courts have generally held that a “real suspicion” is needed for a strip search, and a “clear indication” is needed for a body cavity search.
United States v. Flores-Montano, 124 S. Ct. 1582 (2004)
• Suspicionless border search may include disassembly of vehicle fuel tank
A 1987 wagon entered California from Mexico. The car was sent to secondary inspection and they knocked on the gas tank which gave a solid sound. 37 kilos of marijuana are found in the gas tank. Defendant moved to suppress evidence and the Supreme Court said it was a reasonable border search, no reasonable suspicion is necessary. There is a difference between your car and your body and there is a high government interest in protecting our borders. If the search was real destructive, it might require a different result.
Public Schools & Drug Testing
Vernonia School District 47J v. Acton
515 US 646 (1995)
• Upheld random drug testing program involving public high school athletes.
• Special Need: student body in state of rebellion fueled by alcohol and drug abuse and problem fueled by role model effect of athlete drug use.
Board of Education v. Earls
536 U.S. 822 (2002)
• “Special Needs” and Drug Testing for Students Involved In Extracurricular Activities Upheld
Whether or not you are part of a sports team or the debate team and traveling, the government interest is pretty high and the expectation of privacy is low. The Court says that these types of drug tests are OK. Studies have shown that it does little if nothing to discourage drug use and discourages participation in school activities.
Public Schools and Student Searches
New Jersey v. TLO
469 U.S. 325 (1985)
• Are there “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”?
Facts: School officials searched a high school student’s purse. The Court said the search is justified if the student violated the law or school policies. In this case it was justified because of some level of individualized suspicion. As long as it’s not excessive, taking into account the age and sex of the student, it is reasonable. They are required to have some suspicion but it is not the same suspicion as in Terry.
Ordinarily a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has or is violating the law or rules of the school.
Hypo/Example: School district in Detroit detained students for 90 minutes while they were searched by police. The ACLU reached a settlement with the Detroit police department: $10,000 and Detroit Public Schools: $22,000. No more individual searches (unless the evidence is there) but continue to use metal detectors.
GI: safe schools. D of I: metal detectors.
Drug Testing
Skinner v. Railway Labor Executives’ Association
489 US 602 (1989)
• Upheld drug testing regulations on railway workers
• Special need: Safe railway operations - covered employees are engaged in safety-sensitive tasks.
Government interest is high in keeping the railroads safe – a very compelling government interest and the degree of intrusiveness of the people wanting to work on the railroad is low.
National Treasury Employees Union v. Von Raab
489 US 656 (1989)
•Upheld suspicionless drug testing of employees who apply for promotions to positions involving interdiction of drugs or carrying a firearm
•Special need: Preventing promotion of drug users to positions where they might endanger citizenry or integrity of Nation’s borders
Issue: Can the people who are involved in the drug war be required to be drug free?
Rationale: One might be tempted to dabble in the goods or compromise the integrity of the investigation.
GI: high, DI: low due to the nature of the work.
Chandler v. Miller
520 US 305 (1997)
• Routine drug test of candidates for public office not a permissible “special needs” search.
Clearly this is not a government criminal investigative search. They have to analyze this using the special needs type of approach. This case goes the opposite way. The government interest is more symbolic – we want our public officials to look good. Just because you want to run for public office doesn’t mean that you should be subjected to an intrusive method like this.
This is not like Von Raab where an employee is involved in the day-to-day operations on the war on drugs. In Von Raab the agent would not be exposed to the public (where intoxication is more obvious) as a public candidate is.
Vehicle Checkpoints
Martinez-Fuerte/Prouse/Sitz
• Upheld vehicle checkpoints as long as not individualized, minimal discretion and minimally intrusive.
Even at a permanent checkpoint away from the border, search of a vehicle for aliens is not permissible absent probable cause, but the brief questioning of vehicle occupants at such checkpoints is permissible without any individualized suspicion whatsoever. In Martinez-Fuerte the court emphasized that:
1. The potential interference with legitimate traffic is minimal; and
2. Such checkpoint operations involve less discretionary enforcement activity as the officer may stop only those cars passing at the checkpoint, which is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources.
Prouse case: Absent reasonable suspicion the police may not stop individual vehicles for the purpose of checking the driver’s license and the registration of the automobile. States may develop methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion and gave one possible alternative – the questioning of all oncoming traffic at roadblock-type stops.
Michigan State Police v. Sitz: Upholding the sobriety checkpoint
1. The intrusion upon motorists is “slight”;
2. The program sufficiently limited officers’ discretion as “checkpoints are selected pursuant to established guidelines, and uniformed police officers stop every approaching vehicle”;
3. The program addressed the very serious “drunken driving problem”; and
4. There was support in the record for the law enforcement judgment that such checkpoints were among the “reasonable alternatives” available for dealing with that problem.
Administrative Inspections
New York v. Burger
482 US 691 (1987)
• Warrantless business inspection upheld with “closely regulated” junkyard business.
The junkyard business is closely regulated and inspections permitted by statute or regulations are carefully limited in time, place, and scope. In this case the Court upheld such warrantless inspections of junkyards even though the administrative scheme concerned a social problem (stolen property) also addressed in the penal law, police officers were allowed to make the inspections, and the inspections would often uncover evidence of crime.
Just because the police have to wear two hats doesn’t meant that it was not at the outset a valid special needs search.
City of Indianapolis v. Edmond & Ferguson v. City of Charleston
• When departure from usual warrant requirement is based upon “special needs,” it is necessary that this need be sufficiently different from and divorced from state’s general law enforcement interest.
City of Indianapolis v. Edmond531 US 32 (2000)(O’Connor, J)
• City-operated vehicle checkpoints, complete with drug dogs, undertaken to interdict unlawful drugs, violated 4th Amendment because “primary purpose was to detect evidence of ordinary criminal wrongdoing.”
• If in fact we are looking at a truly criminal investigative search, then the Court tells us in these cases that it can’t be a special needs search. If you want to classify it as a special needs search, it’s necessary that the need be sufficiently different from and divorced from state’s general law enforcement interest.
When the Court looked at these two cases it said no, this is not a special needs search, this is not a need beyond the need of normal law enforcement, and this is not a need other than general crime control or crime detection.
Special Needs vs. Ordinary Law Enforcement
Ferguson v City of Charleston
532 US 67 (2001)(Stevens, J)
• Invalidated a policy of a state hospital to perform diagnostic urine tests on any maternity patient suspected of drug use, who, thereby, was jeopardizing the health of her unborn child.
• Court found 4th Amendment violation as the “central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.”
The Court says that the purpose that is actually served is ultimately indistinguishable from a general interest in crime control. These two cases point out how if it goes far enough, you can’t classify it as a special needs search, it’s more likely to be a criminal search. How could’ve these cases been saved? If they had individualized suspicion against these specific individuals because it’s a criminal search, then they could have been saved. If it’s a criminal search along the lines of Terry, you’ve got to have some kind of evidence to support it – reasonable suspicion if it’s Terry, probable cause if it’s more than that.
If it’s a civil search and they’re going to call it a civil search, then no individualized suspicion is necessary. These cases point out that you need to make a decision from the very beginning about:
1. Whether or not this is a criminal search or a special needs search; and
2. Assuming it’s a criminal search, then there’s not enough evidence to support it and it should be suppressed; or
3. Assuming you don’t get passed that hurdle and treat it as a reasonable special needs search, then you have to do the GI vs. DI Balancing Test.
Illinois v. Lidster
124 S. Ct. 885 (2004) (Breyer, J)
• Informational checkpoints: Intended primarily for general crime control (and hence, requiring some level of individualized suspicion) or a “reasonable” suspicionless special needs seizure?
FACTS: An unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a 70-year-old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public. As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer.
Lidster approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on Ds breath. Another officer administered a sobriety test and then arrested D. Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol.
It’s still a special needs search because the police are not trying to make cases against individual drivers of the vehicles that are stopped at the checkpoint, like Lidster who happens to be drunk, they are trying to resolve a crime. This is a little more intrusive than stopping somebody on the street to ask him or her some questions about witnessing a crime because you have a checkpoint setup for it. The Court said that this is the equivalent of a special needs search.
Vehicle Exception: Once the officer has probable cause, you can take your search as far as the probable cause takes you. If there is probable cause that there are drugs in the car, the officer can search anywhere in the vehicle that drugs might be. On the other hand, if the officer has probable cause that a brown paper bag with drugs was placed in the trunk, the officer can search the trunk for the brown paper bag pursuant to the vehicle exception. Again, you don’t need a warrant for this; it is based on probable cause.
The vehicle exception applies to motor homes. If he motor home is more like a home, an officer will need a warrant or some exception to the warrant requirement. The rationale: It’s based upon the ready mobility as well as the reduced expectation of privacy that individuals have in a vehicle.
Consent Searches: Schneckloth v. Bustamonte, the test is totality of circumstances – the court said look at everything. You do not have to be told you can refuse consent and that is a factor in the totality of circumstances. Whether you are in custody or not is a factor. The environment in which the request was made and the educational level/intelligence level of the individual is a factor. Was there a vulnerable state of mind that the consenter presently had? Was there any kind of force used – overt or covert? Was there any kind of implied threat? All of these factors come into play in determining whether or not an individual has, under the circumstances, given a voluntary consent. If you voluntarily consent, then of course you’ve got a consent that is reasonable under the Fourth Amendment and the evidence that follows therefrom is admissible.
Florida v. Bostick
(1991)
“Doesn’t the ready discovery of incriminating evidence pursuant to the ‘consent’ of a person who has denied his guilt manifest that the consent must have been involuntary?”
Why would a person with incriminating evidence consent to a search? The Supreme Court responded that such an “argument cannot prevail because the ‘reasonable person’ test presupposes an innocent person.” KLI 454, note 6.
If the question was about a reasonable guilty person, then the question would have some merit, but it’s not – it’s about a reasonable innocent person. The voluntariness question focuses on how a reasonable “innocent” person would respond. Just because you feel anxiety does not mean that is rises to the level of involuntariness for purposes of the Supreme Court’s perspective on this question of “under the totality of circumstances” – the ability to consent voluntarily.
This whole question of what is consent and voluntariness are terms of art that are heavily influenced by the courts perception of law enforcement needs.
KLI Page 453, Note 2: Claim or show of authority. If a police officer says, you got to give us consent because we are going to get a search warrant anyhow so you’d better consent. Under the totality of the circumstances for voluntariness the impact would be great. “Where there is coercion there cannot be consent” – it could overcome the involuntariness. If the officer smells pot, he can say that he could get a warrant based on probable cause. Probable cause is not based in hard certainties, it’s based upon probabilities.
KLI Page 454, Note 4: Prior illegal police action. If there is a constitutional violation before the consent occurs, the subsequently obtained consent may be ineffective.
Florida v. Jimeno
(1991)
• Scope of consent is measured by “objective” reasonableness – “what would the typical reasonable person have understood by the exchange between the officer and the suspect?”
This is not obvious in how it will apply in all circumstances. In this case, the police got consent to search a car for drugs. What about a locked briefcase? They can ask for a key. There is a limit as to how far the consent can go.
If give consent voluntarily, you can revoke consent at any time. Will he stop? Theoretically he is supposed to and the Supreme Court seems to think that he should. There is not a lot of case law on this mostly by the lower courts.
Consent Searches Based Upon Third Party Consent
Georgia v. Randolph
(2006)(Souter, J)
• Can police rely on the consent to search a home when another present “cohabitant” objects?
Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. One tenant is not superior over the other tenant. The police are not required to “seek” consent from the other cohabitant. If cohabitant or co tenant is home asleep or at work, the officer does not need to seek consent from the cotenant. The police cannot create a situation to seek consent either.
The state has the burden to prove that this person had actual authority over the premises to give consent. If the police officer objectively believed that the person who gave the consent had authority to do so, as long as the mistake was reasonable, then the search is valid.
Exigent circumstances will allow a police officer to get in, i.e. domestic violence cases or emergencies.
PLAIN VIEW Exception:
• If officer lawfully present, he may observe certain items not within the “immediate control” of the arrestee or not within the scope of the lawful reason for being present which will nonetheless be subject to warrantless seizure.
Present Plain View Requirements:
• Officer Lawfully Present wherever he happens to be. Public street, inside a house because of a search warrant, exigent circumstances, etc.
• Officer Has Lawful Right of Physical Access. The issue in the Hicks case.
• Incriminating Character of Item Immediately Apparent. The probable cause nature of the item exists and gives the officer authority to seize it.
Warrant Exceptions - Plain View Doctrine:
Arizona v. Hicks
480 U.S. 321 (1987)(Scalia, J)
• The Plain View Doctrine at work: Movement of an object in plain view to permit further investigation may result in new search (where PC is needed – without which the search may be unlawful).
A shooting was reported in an apartment building. Officers went to the apartment that the shots came from to search for the shooter, weapons, and for any victims. They found and seized three guns and a stocking-cap mask. They also saw expensive stereo equipment, and the officer had a reasonable suspicion that the equipment was stolen since it was out of place for the run down apartment. He moved the equipment around to search for serial numbers, which he found and called in to his headquarters. It was confirmed that the items had been stolen in armed robberies. D was arrested and convicted for armed robbery and now appeals.
The plain view doctrine does not allow a party to search on a reasonable suspicion.
The officer's moving of the equipment was a search separate and apart from the search for the shooter, victims, and weapons, which was the lawful objective of his entry into the apartment. Inspecting the visible parts of the equipment without touching would have been permissible under the plain view doctrine.
Hypo: An officer has a valid search warrant for stolen TV sets. The officer opens up the closet and sees bails of marijuana. The officer can take the marijuana because the search warrant would allow him to search a closet. He has a right to be there and the marijuana is in plain view.
Part 2: In the bedroom is a jewelry box. He opens the box and sees cocaine. The scope of the search would limit the officer to look in the jewelry box.
Part 3: If the search warrant said look for any and all TV sets and paperwork and then the officer looked in the jewelry box, then that might create a credibility question with the judge. Arguably yes but probably not.
Part 4: On top of the dresser was a counterfeit Rolex watch. Although the officer is lawfully present, the probable cause seems to be missing.
Part 5: An officer walking on the street sees behind a screen a marijuana plant. It wouldn’t be too hard to get a warrant. He could also ask for consent.
Part 6: The officer sees the guy watering his plant and he notices the police officer so he grabs the plant and takes off. The exigent circumstances would allow the officer to enter (potential destruction of evidence) even if he was just moving the plant for more sun. The officer doesn’t have to right; he just has to be reasonable.
SPECIAL NEEDS SEARCHES
These searches are non-criminal in nature; they are civil searches in general. Sometimes it is the public school official or the public employer that is doing some kind of a search. Read the introduction on page 439. No individualized suspicion is needed at all. Unlike Terry where we’ve got reasonable suspicion to justify the behavior as it pertains to stopping and frisking, or as it extends to the car in Long or as it extends to the house in Buie, that all involves individualized suspicion and generally involves a criminal investigative type of search.
These special needs types of searches are civil and no individualized suspicion is involved at all. All the court has told us is that, what you need to look to, to determine whether or not it’s constitutionally permissible is this Reasonable Balancing Test – they weigh the government interest against the degree of intrusiveness. If the government interest outweighs the degree of intrusiveness, then it considered to be potentially reasonable.
Chandler v. Miller excerpt: See TWEN page.
These intrusions are searches under the Fourth Amendment. The question becomes, are these searches reasonable? General Rule: To be reasonable under the Fourth Amendment the search ordinarily must be based upon some kind of individualized suspicion of wrongdoing. But exceptions to the main rule are sometimes warranted under special needs – needs beyond the needs of normal law enforcement. Special needs are concerns other than crime detection.
It is clearly intrusive and it is clearly a search. When it is a special need, we take up this “context specific inquiry” (totality of circumstances). If the facts are slightly different
the outcome might be x but it might be y. If the GI outweighs the DI, the government wins. In Chandler v. Miller the government looses.
Giving your ID to an airline is ok under the Constitution. It is ok to require individuals to give up their identification especially since there are alternative ways to travel.
Safety Inspections
Camara v. Municipal Court
387 US 523 (1967)
• When the Court determines that “special needs” exist, it evaluates the government activity - the special need - by the “reasonableness” balancing standard.
Camara created the reasonableness balancing test in the context of civil searches where you don’t have to have any individualized suspicion. Terry was the criminal case (decided in the same year) that used the reasonable balancing test in the context of criminal searches where you do have to have individualized suspicion.
In order to obtain a warrant, the inspector does not have to demonstrate probable cause to believe that a violation of an ordinance within his domain will be discovered in the premises to be searched.
Balancing Test: Weighing society’s interest in conducting the inspections against the individual’s interest in resisting intrusion. Because such inspection programs are generally publicly accepted, and because they are the only canvassing technique which would achieve acceptable results, and because the intrusion is relatively limited, the Court decided that the balance should be weighed in favor of society, and probable cause is not required.
Inventory Search
Illinois v. Lafayette
462 U.S. 640 (1983)(Burger, CJ)
• Arrest Inventories: Police may search an arrested person, as well as his personal effects, including containers, as part of a routine inventory at police station, incident to his booking and jailing.
Defendant was arrested for breach of peace, and was not searched incident to his arrest but was searched at the police station and a shoulder bag belonging to defendant contained drugs. The Supreme Court said that he could have been searched when arrested and that the search was reasonable and lawful because it was done pursuant to a routine inventory procedure.
The police department can be required to use less intrusive means by the state. (Ceiling/Floor analogy)
Colorado v. Bertine
479 U.S. 367 (1987)(Rehnquist, CJ)
• Inventory Inspections: Discretion regarding whether to conduct an inventory permissible as long as it is exercised according to standard criteria.
A police officer arrested Bertine (D) for driving his van while under the influence of alcohol. After D was taken into custody but before a tow truck arrived to take the van to an impoundment lot, another officer, acting in accordance with police procedure, inventoried the van's contents. Included in this inventory were the contents of a backpack found in the van. The backpack search yielded various controlled substances, cocaine paraphernalia, and a large amount of cash. D objected to this search. The court determined that the search did not violate his rights under the U.S. Constitution, but it violated his rights under the Colorado (P) State Constitution. The Colorado Supreme Court affirmed, but premised its ruling on the Federal Constitution. The United States Supreme Court granted certiorari.
Holding: The warrantless inventory of an impounded vehicle may include the entire vehicle, including a search of the contents of closed containers found inside the vehicle.
Reasoning: Such inventory searches protect the property from being stolen or damaged, protect PO from false claims of theft or vandalism, and may protect PO’s safety because of weapons, bombs, etc.
Conditions Imposed: (1) That the police follow standardized procedures, so that the individual searching officer does not have unbridled discretion to determine the scope of the search; and (2) That the police not have acted in bad faith or for the sole purpose of investigating.
Government interest outweighs the degree of intrusiveness in the usage of an inventory search exception. It does not require individualized suspicion and is reasonable. Just because you get criminal evidence out of one of these special needs searches does not mean that it is not from the outset, a special needs type of search.
Inventory Search:
Florida v. Wells
495 U.S. (1990)
• Inventory search of locked suitcase in trunk not authorized as inventory search unless department procedures exist regarding the opening of closed containers.
Border Searches
It is ok to search at the border without any individualized suspicions whatsoever. It is reasonable under the single fact that: The person or item in question has entered into this country from the outside.
United States v. Ramsey
(1977)
• Search “reasonable” based upon “single fact that the person or item in question had entered the country from the outside”
–For a discussion on length of detention at border, see United States v. Montoya de Hernandez (1985) Defendant held at the border until she had a bowel movement upon the suspicion of drugs.
As for non-routine border inspections, lower courts have generally held that a “real suspicion” is needed for a strip search, and a “clear indication” is needed for a body cavity search.
United States v. Flores-Montano, 124 S. Ct. 1582 (2004)
• Suspicionless border search may include disassembly of vehicle fuel tank
A 1987 wagon entered California from Mexico. The car was sent to secondary inspection and they knocked on the gas tank which gave a solid sound. 37 kilos of marijuana are found in the gas tank. Defendant moved to suppress evidence and the Supreme Court said it was a reasonable border search, no reasonable suspicion is necessary. There is a difference between your car and your body and there is a high government interest in protecting our borders. If the search was real destructive, it might require a different result.
Public Schools & Drug Testing
Vernonia School District 47J v. Acton
515 US 646 (1995)
• Upheld random drug testing program involving public high school athletes.
• Special Need: student body in state of rebellion fueled by alcohol and drug abuse and problem fueled by role model effect of athlete drug use.
Board of Education v. Earls
536 U.S. 822 (2002)
• “Special Needs” and Drug Testing for Students Involved In Extracurricular Activities Upheld
Whether or not you are part of a sports team or the debate team and traveling, the government interest is pretty high and the expectation of privacy is low. The Court says that these types of drug tests are OK. Studies have shown that it does little if nothing to discourage drug use and discourages participation in school activities.
Public Schools and Student Searches
New Jersey v. TLO
469 U.S. 325 (1985)
• Are there “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school”?
Facts: School officials searched a high school student’s purse. The Court said the search is justified if the student violated the law or school policies. In this case it was justified because of some level of individualized suspicion. As long as it’s not excessive, taking into account the age and sex of the student, it is reasonable. They are required to have some suspicion but it is not the same suspicion as in Terry.
Ordinarily a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has or is violating the law or rules of the school.
Hypo/Example: School district in Detroit detained students for 90 minutes while they were searched by police. The ACLU reached a settlement with the Detroit police department: $10,000 and Detroit Public Schools: $22,000. No more individual searches (unless the evidence is there) but continue to use metal detectors.
GI: safe schools. D of I: metal detectors.
Drug Testing
Skinner v. Railway Labor Executives’ Association
489 US 602 (1989)
• Upheld drug testing regulations on railway workers
• Special need: Safe railway operations - covered employees are engaged in safety-sensitive tasks.
Government interest is high in keeping the railroads safe – a very compelling government interest and the degree of intrusiveness of the people wanting to work on the railroad is low.
National Treasury Employees Union v. Von Raab
489 US 656 (1989)
•Upheld suspicionless drug testing of employees who apply for promotions to positions involving interdiction of drugs or carrying a firearm
•Special need: Preventing promotion of drug users to positions where they might endanger citizenry or integrity of Nation’s borders
Issue: Can the people who are involved in the drug war be required to be drug free?
Rationale: One might be tempted to dabble in the goods or compromise the integrity of the investigation.
GI: high, DI: low due to the nature of the work.
Chandler v. Miller
520 US 305 (1997)
• Routine drug test of candidates for public office not a permissible “special needs” search.
Clearly this is not a government criminal investigative search. They have to analyze this using the special needs type of approach. This case goes the opposite way. The government interest is more symbolic – we want our public officials to look good. Just because you want to run for public office doesn’t mean that you should be subjected to an intrusive method like this.
This is not like Von Raab where an employee is involved in the day-to-day operations on the war on drugs. In Von Raab the agent would not be exposed to the public (where intoxication is more obvious) as a public candidate is.
Vehicle Checkpoints
Martinez-Fuerte/Prouse/Sitz
• Upheld vehicle checkpoints as long as not individualized, minimal discretion and minimally intrusive.
Even at a permanent checkpoint away from the border, search of a vehicle for aliens is not permissible absent probable cause, but the brief questioning of vehicle occupants at such checkpoints is permissible without any individualized suspicion whatsoever. In Martinez-Fuerte the court emphasized that:
1. The potential interference with legitimate traffic is minimal; and
2. Such checkpoint operations involve less discretionary enforcement activity as the officer may stop only those cars passing at the checkpoint, which is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources.
Prouse case: Absent reasonable suspicion the police may not stop individual vehicles for the purpose of checking the driver’s license and the registration of the automobile. States may develop methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion and gave one possible alternative – the questioning of all oncoming traffic at roadblock-type stops.
Michigan State Police v. Sitz: Upholding the sobriety checkpoint
1. The intrusion upon motorists is “slight”;
2. The program sufficiently limited officers’ discretion as “checkpoints are selected pursuant to established guidelines, and uniformed police officers stop every approaching vehicle”;
3. The program addressed the very serious “drunken driving problem”; and
4. There was support in the record for the law enforcement judgment that such checkpoints were among the “reasonable alternatives” available for dealing with that problem.
Administrative Inspections
New York v. Burger
482 US 691 (1987)
• Warrantless business inspection upheld with “closely regulated” junkyard business.
The junkyard business is closely regulated and inspections permitted by statute or regulations are carefully limited in time, place, and scope. In this case the Court upheld such warrantless inspections of junkyards even though the administrative scheme concerned a social problem (stolen property) also addressed in the penal law, police officers were allowed to make the inspections, and the inspections would often uncover evidence of crime.
Just because the police have to wear two hats doesn’t meant that it was not at the outset a valid special needs search.
City of Indianapolis v. Edmond & Ferguson v. City of Charleston
• When departure from usual warrant requirement is based upon “special needs,” it is necessary that this need be sufficiently different from and divorced from state’s general law enforcement interest.
City of Indianapolis v. Edmond531 US 32 (2000)(O’Connor, J)
• City-operated vehicle checkpoints, complete with drug dogs, undertaken to interdict unlawful drugs, violated 4th Amendment because “primary purpose was to detect evidence of ordinary criminal wrongdoing.”
• If in fact we are looking at a truly criminal investigative search, then the Court tells us in these cases that it can’t be a special needs search. If you want to classify it as a special needs search, it’s necessary that the need be sufficiently different from and divorced from state’s general law enforcement interest.
When the Court looked at these two cases it said no, this is not a special needs search, this is not a need beyond the need of normal law enforcement, and this is not a need other than general crime control or crime detection.
Special Needs vs. Ordinary Law Enforcement
Ferguson v City of Charleston
532 US 67 (2001)(Stevens, J)
• Invalidated a policy of a state hospital to perform diagnostic urine tests on any maternity patient suspected of drug use, who, thereby, was jeopardizing the health of her unborn child.
• Court found 4th Amendment violation as the “central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.”
The Court says that the purpose that is actually served is ultimately indistinguishable from a general interest in crime control. These two cases point out how if it goes far enough, you can’t classify it as a special needs search, it’s more likely to be a criminal search. How could’ve these cases been saved? If they had individualized suspicion against these specific individuals because it’s a criminal search, then they could have been saved. If it’s a criminal search along the lines of Terry, you’ve got to have some kind of evidence to support it – reasonable suspicion if it’s Terry, probable cause if it’s more than that.
If it’s a civil search and they’re going to call it a civil search, then no individualized suspicion is necessary. These cases point out that you need to make a decision from the very beginning about:
1. Whether or not this is a criminal search or a special needs search; and
2. Assuming it’s a criminal search, then there’s not enough evidence to support it and it should be suppressed; or
3. Assuming you don’t get passed that hurdle and treat it as a reasonable special needs search, then you have to do the GI vs. DI Balancing Test.
Illinois v. Lidster
124 S. Ct. 885 (2004) (Breyer, J)
• Informational checkpoints: Intended primarily for general crime control (and hence, requiring some level of individualized suspicion) or a “reasonable” suspicionless special needs seizure?
FACTS: An unknown motorist traveling eastbound on a highway in Lombard, Illinois, struck and killed a 70-year-old bicyclist. The motorist drove off without identifying himself. About one week later at about the same time of night and at about the same place, local police set up a highway checkpoint designed to obtain more information about the accident from the motoring public. As each vehicle drew up to the checkpoint, an officer would stop it for 10 to 15 seconds, ask the occupants whether they had seen anything happen there the previous weekend, and hand each driver a flyer.
Lidster approached the checkpoint, his van swerved, nearly hitting one of the officers. The officer smelled alcohol on Ds breath. Another officer administered a sobriety test and then arrested D. Lidster was tried and convicted in Illinois state court of driving under the influence of alcohol.
It’s still a special needs search because the police are not trying to make cases against individual drivers of the vehicles that are stopped at the checkpoint, like Lidster who happens to be drunk, they are trying to resolve a crime. This is a little more intrusive than stopping somebody on the street to ask him or her some questions about witnessing a crime because you have a checkpoint setup for it. The Court said that this is the equivalent of a special needs search.
REVIEW
In Terry v. Ohio probable cause was never attainable in that situation, but the police did what they were supposed to do so the Court created the Terry line of thinking.
Probable cause is required to get a warrant. There are other situations that are equivalent of a full-blown arrest that we call Major League Seizures and Major League Searches, for which you need probable cause, which means you need an individualized suspicion.
For Special Needs Searches/Seizures you do not need any suspicion – no individualized suspicion is necessary. The court asks: Is this the equivalent of a special needs search or an administrative, regulatory type search? Is it a need that goes beyond the need of normal law enforcement? Is not criminal investigative in nature? Once they’ve determined that it is something that falls into that category, then they say, let’s asses it using the reasonableness prong as described in Camara. We are going to use the Reasonableness Balancing Test – GI vs. DI. It’s very similar to Terry v. Ohio but there is no individualized suspicion. If the GI outweighs the DI – sometimes referred to as the interests of the defendant, then the court says that it is reasonable and hence if it’s reasonable then it is also constitutional.
There are some types of searches that could be special needs searches that are conducted by police officers. Just because it’s a special needs search doesn’t mean that the evidence can’t be used in a criminal case. In fact, they often are. That doesn’t mean that it makes it a criminal investigative search for which there has to be individualized suspicion in the first place. That being said, there could be some searches that are so criminal investigative in nature, that they are not properly called special needs searches, or administrative searches or regulatory searches, they’re more like a criminal investigative search for which you need individualized suspicion., reasonable suspicion or probable cause depending on the kind of search that it happens to be.
As a defense attorney you are looking at it and saying: First, criminal search? You need to have individualized suspicion. Didn’t have it? Hence, it’s unconstitutional. If the court says that doesn’t work, then in the alternative, if you are going to call it a special needs search then the GI outweighs the DI. Use each of those cases as little examples of how these are categorized. If the facts change a little bit, then the outcome might change – need to look at the totality of the circumstances.
We talked about Lidster and when that case was first argued before the Supreme Court, it was called a special needs search because the conduct of the police has to be investigating the specific individual that they are stopping/seizing/searching. That’s not what happened in Lidster. The people they were stopping were potential witnesses. A slight variation by the Supreme Court.
Read the Chandler v. Miller handout for clarification.
Parolee Test (a new test???)
Samson v. California
126 S. Ct. 2193 (2006)
• Weighing parolee’s “substantially diminished” privacy interest against the state’s “substantial” interests in reintegrating offenders into society and in protecting the public from potential recidivists
A California statute that says every parolee can be searched without probable cause. It sounds like a special needs search. In Griffin it was a search of a parolee’s home. Presumably if it’s a special needs search you don’t need individualized suspicion. In Knights the court left open the question of having any suspicion at all to search a parolee. That was not resolved in Knights because they had reasonable suspicion. The question they are going to address in this case is, do you have to have any suspicion to search parolees? A Parolee in California does not have a high expectation of privacy as opposed to a probationer. Parolees are an extension of your prison term; probation is an alternative to being incarcerated.
If you were to envision what the California police officer’s were doing, what do you think is happening? The police ask him if he is on parole, if he says yes, that empowers the police in California to arrest him or search him. The court says it’s ok. How do they arrive at that conclusion? The legal analysis that the court uses to say it’s constitutional under the Fourth Amendment is the Court uses is the Reasonableness Balance Test (GI vs. DI).
FN 3, Page 89 in Supplement: “Because we find that the search at issue here is reasonable under our general Fourth Amendment approach, we need not reach the issue whether ‘acceptance of the search condition constituted consent in the Schneckloth v. Bustamonte sense of a complete waiver of his Fourth Amendment rights…nor do we address whether California’s parole search condition is justified as a special need under Griffin v. Wisconsin, because our holding under general Fourth Amendment principles renders such an examination unnecessary.”
The GI that outweighs the DI: Recidivism. Newly released parolees are a hazard – search them before they commit another crime. A parolee is one step away of being a prisoner so they have a severely diminished expectation of privacy. The degree of intrusiveness is low. The court said that there are limitations under California law that makes it constitutionally permissible. California police officers cannot arrest/search/seize when it become arbitrary or for harassment. They can only do it when they have knowledge that the person stopped for the search is a parolee.
The Sliding Scale of Privacy:
In order to search Regular Guy, you have to have Probable Cause.
In order to make the stop of Terry Guy you have to have Reasonable Suspicion.
In order to stop Probationer Guy, you need Reasonable Suspicion or Less.
In order to stop Parolee Guy, you need Knowledge of Parolee Status.
In order to stop Prisoner Guy, Nothing is Necessary.
Administrative Inspections
New York v. Burger
482 US 691 (1987)
• Warrantless business inspection upheld with “closely regulated” junkyard business.
Special Needs vs. Ordinary Law Enforcement
EXCLUSIONARY RULE
Assuming that a Fourth Amendment violation has occurred, what remedy if any do we invoke? What alternatives do we have that the Supreme Court has given us?
Wolf v. Colorado
(1949)(Frankfurter, J)
• Exclusionary Rule announced in Weeks v. United States not extended to the states.
The Weeks Test: In a federal criminal case, a violation of the Fourth Amendment, the end result is evidence should be suppressed. The Weeks doctrine was a matter of judicial implication – meaning that it’s created by the Court to address the wrongs. The Supreme Court said that in federal criminal cases it has to exist. In regards to its requirement in state cases under the Wolf case, the Weeks exclusionary rule was not applicable under Wolf. In Wolf it was not a matter of judicial implication.
States have their own remedies. In order for the Supreme Court to tell the states what to do, it has to be constitutional. The Supreme Court will oftentimes look to see how many states follow a certain procedure in order to determine if it’s constitutional or not.
Mapp v. Ohio (1961)(Clark, J)
• Overruling Wolf: Exclusionary Rule applicable to states.
If the other states are doing it then it must be constitutional. In part that is what they are doing here.
The Court is concerned about the quality of the remedies.
The new rule is: Evidence that is unconstitutionally seized will be excluded at trial in a state criminal case. The US Supreme Court can tell the states to do it as well when it implicates the Constitution. If it doesn’t violate the Constitution, the Supreme Court can’t review it.
The two main purposes served by the rule are:
1. To deter the police by removing the incentive to disregard the Fourth Amendment; and
2. Judicial integrity. Is the court breaking the law by allowing evidence to be used in court that was obtained illegally?
The costs and the benefits:
The benefit of applying the exclusionary rule is that it deters police from doing it in the future.
The cost is relevant and reliable evidence will not be admitted. (Corbett: That’s a pretty big cost.)
LIMITATIONS ON EXCLUSIONARY RULE
Pennsylvania Board of Probation and Parole v. Scott
(1998)(Thomas, J)
• Exclusionary Rule does not apply in parole revocation hearings.
• Relying on Calandra, Janis, and Lopez-Mendoza, Court declined “to extend the operation of the exclusionary rule beyond the criminal trial context”
The Exclusionary Rule applies in a criminal trial context.
One 1958 Plymouth Sedan v. Pennsylvania
• Exclusionary Rule also applies in a civil forfeiture hearing, because it is a quasi-criminal proceeding.
You’ve got a constitutional violation and using this exclusionary rule, evidence can be suppressed if it applies to a criminal trial context. In all the other situations, you are not going to prevent the evidence from coming in by using the exclusionary rule to prohibit the admission of evidence in various other hearings – whether they are deportation hearings, habeas corpus proceedings, civil tax proceedings brought by a different sovereign, probation violation hearings and grand jury proceedings.
You use the Cost/Benefit Test. If the benefit is low, then the cost is high.
The benefit: Deterrence of the police
United States v. Calandra
(1974)(Powell, J)
• Grand Jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from an earlier unlawful search.
Evidence that is arguably excludable evidence because of a constitutional violation from a criminal trial proceeding is not inadmissible in a grand jury proceeding, which is a hearing to determine whether or not there’s probable cause that a particular person committed a particular crime and whether or not an indictment should be issued.
United States v. Janis
(1976)(Blackmun, J)
• Exclusionary Rule does not apply in civil tax proceedings when civil proceedings brought by different sovereign than that of offending officers.
State police who seized a large quantity of gambling proceeds, did not bring it to the state IRS, they brought it to the federal IRS and ultimately the Court said the Fourth Amendment exclusionary rule does not apply to civil tax proceeding brought by a different sovereign.
The distinction is state police bringing it to the federal IRS.
INS v. Lopez-Mendoza
(1984)(O’Connor, J)
• Exclusionary Rule does not apply in civil deportation proceedings.
Stone v. Powell
(1976)(Powell, J)
• Exclusionary Rule has only limited applicability in federal habeas corpus proceedings brought to overturn state criminal convictions.
Stone is a state prisoner, who has had a state criminal case (Powell is the warden). In the state criminal case, they have had a full and fair opportunity to litigate their Fourth Amendment claim. They brought it up in a motion to suppress prior to trial and the court denied the motion. Stone is convicted and he appeals, all the while he is incarcerated.
The arresting police officer is not thinking whether or not the evidence will be excluded from a habeas corpus proceeding five years later – there is no deterrent impact at all. The Court says, as long as the defendant has had a full and fair opportunity to litigate his Fourth Amendment claim in state court, then you can’t apply the exclusionary rule in a habeas corpus proceeding.
The Cost: excluding reliable evidence of guilt – it often frees the guilty (court language).
The Benefit: Deterrence. The Court said there is minimal deterrence here over and above that which would have been achieved based upon what happened at the trial court level in the criminal trial context.
As long as the defendant had a full and fair opportunity to litigate the Fourth Amendment claim in state court, he is not going to be able to raise it in the habeas corpus context.
Page 1636 in Supplement:
“The exclusionary rule is a judicially created means of effectuating the rights secured by the Fourth Amendment. The primary justification for the exclusionary rule is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any reparation comes too late. Despite the broad deterrence purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, ‘the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. United States v. Calandra. Thus, our refusal in Calandra to extend the exclusionary rule to grand jury proceedings was based on a balancing of the potential contribution to the effectuation of the Fourth Amendment through deterrence of police misconduct.”
The court did not overrule Mapp, they simply said that it only applies in certain contexts – criminal trial contexts.
If it’s judicially created, they cannot tell the states what to do because it has to be constitutional. If it’s constitutional enough, they can tell the states that they have to follow it. But, it’s not so constitutional that they can’t limit its application.
STANDING
“STANDING”: Who can challenge an illegal search? As a general rule, only a person whose personal Fourth Amendment rights were intruded upon by the police can challenge an illegal search. It’s effectively a limitation on the exclusionary rule because while the exclusionary rule exists, and is intended to allow for the suppression of evidence that is seized in violation of the Constitution. If your Fourth Amendment rights were not intruded upon by the police, you don’t have a constitutional leg to stand on – you cannot try and get the evidence suppressed and have the police deterred by the application of the exclusionary rule.
Standing has been on EXAMS
The “Standing” Requirement:
Alderman v. US
(1969)(White, J)
• “Suppression of the product of a 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”
Your personal rights have to be violated by the search itself or at least be implicated enough to give you standing to be able to bring the claim. Standing is one thing – it doesn’t automatically mean there has been a violation of the Fourth Amendment, it just means that you can bring it to court and then determine if there was a violation under the Fourth Amendment.
What language from the Fourth Amendment supports this approach? Two words and they go together:
•“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searchers and seizures….”
In other words: The right of a person to be secure in his or her person, house, papers, and effects.
If the evidence is there and you have no legitimate expectation of privacy in the invaded place, you are out of luck.
Rakas v. Illinois
(1978)(Rehnquist, J)
• Passenger expectation of privacy in a car; “Standing” requirement should be treated merely as a reiteration of the basic point that a person may not successfully challenge a search unless his own rights were violated.
FACTS: A police officer received a radio call notifying him of a robbery of a clothing store. The report described the getaway car. Shortly thereafter, the officer spotted an automobile which he thought might be the getaway car. He and several other officers stopped the vehicle. The occupants of the automobile, Rakas (D) and two female companions (D1), were ordered out of the car. The officers then searched the interior of the vehicle. They discovered a box of rifle shells in the glove compartment, which had been locked, and a sawed-off rifle under the front passenger seat. After discovering the rifle and the shells, the officers took Ds to the station and placed them under arrest. D1 moved to suppress the rifle and shells seized from the car on the ground that the search violated the Fourth and Fourteenth Amendments. They conceded that they did not own the automobile and were simply passengers; D of the car had been the driver of the vehicle at the time of the search. Nor did they assert that they owned the rifle or the shells seized.
The passengers do not have an interest in the car. The Appellate Court affirmed the trial court's denial of D1's motion to suppress because it held that "without a proprietary or other similar interest in an automobile, a mere passenger therein lacks standing to challenge the legality of the search of the vehicle." The Illinois Supreme Court denied petitioners leave to appeal. The Supreme Court granted certiorari.
The Supreme Court never resolved the question of whether this search was constitutional.
The Supreme Court determined that an individual has standing when the individual has an expectation of privacy. Being the target of an investigation does not give you a legitimate expectation of privacy alone – it may be part of the overall factors.
Being on the premises alone does not give you standing. If you are in a private place with the permission of the owner does not necessarily give you standing. The controlling test is a legitimate expectation of privacy.
RULE OF LAW: A party must allege a violation of her Fourth Amendment rights in order to assert standing under the exclusionary rule. In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
The Court held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence.
The difference between the legitimate expectation of privacy in Rakas from the reasonable expectation of privacy in Katz is:
The Difference:
Search under Katz (Fourth Amendment): Whether there is an actual subjective expectation of privacy and whether society is prepared to recognize it as reasonable. Katz deals with the general question of whether the activity of the police intruded upon anybody’s Fourth Amendment rights.
Search under Rakas (Standing question): Whether or not the particular person’s (the movant in a motion to suppress) rights were implicated enough that they have standing to bring the question before the court. Rakas deals with whether a particular movant’s Fourth Amendment rights were intruded upon by the police giving them standing.
They are necessarily intertwined but they are separate and discreet questions using the same language.
Example: A person that says they have standing, and a court could say, you’re right – you have a legitimate expectation of privacy in the invaded place, but the court ultimately concludes that there is no violation of the Fourth Amendment.
Example 2: A person does not have standing, but along the lines of the Payner case, there could be a clear violation of the Fourth Amendment where there was a reasonable expectation of privacy and no justification for it.
Minnesota v. Carter
(1998)
• One “who is merely present with the consent of the householder may not” claim the protections of the 4th Amendment
A police officer went to an apartment building to investigate a tip from a confidential informant. The officer looked in the same basement window through a gap in the closed blind and observed a cocaine bagging operation for several minutes. Affidavits for a search warrant were prepared. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were Carter and Johns (Ds). They observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle's floor. Ds were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags. After seizing the car, the police returned to apartment 103 and arrested Kimberly Thompson, who is not a party to this appeal. There was cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. The informant identified Ds and Thompson as the three people he had observed placing the powder into baggies. Thompson was the lessee of the apartment. Ds lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Ds had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. In return for the use of the apartment, Ds had given Thompson one-eighth of an ounce of the cocaine. Ds moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. Ds' argued that the initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment. The trial court held that Ds were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that the Officer's observation was not a search within the meaning of the Fourth Amendment. Ds were convicted. The Minnesota Court of Appeals held that respondent D did not have "standing" to object to the Officer's actions. A divided Minnesota Supreme Court reversed, holding that Ds had "standing" to claim the protection of the Fourth Amendment because they had "'a legitimate expectation of privacy in the invaded place.' The Supreme Court granted certiorari.
The question before the Supreme Court is whether Carter (the guest) has standing to challenge the evidence that was admitted pursuant to an illegal search (the police officer peeking in the window.
The Supreme Court concluded that it didn’t really matter because he didn’t have standing.
The threshold question: Whether the people challenging evidence have standing to challenge the admissibility of the evidence.
Carter did not have a legitimate expectation of privacy because where a person visits a house only briefly, and does so for a purely business purpose, the Court held that no legitimate expectation of privacy exists. Consequently, no Fourth Amendment search took place when a police officer standing outside the building peered into the apartment through half-drawn blinds.
Factors for whether or not a guest has a legitimate expectation of privacy:
1. Purpose of the visit;
2. Overnight guest or not;
3. Length of the stay.
Dissent: The power to exclude implies the power to include.
United States v. Payner
(1980)(Powell, J) The briefcase caper case
• Supervisory power can’t be used to prohibit evidence from third party search when defendant lacked standing to contest search.
This is a classic example of how a third party’s rights can be violated without any concern.
The “Standing” Requirement:
Rawlings v. Kentucky
(1980) (Rehnquist, J)
• A person may not successfully challenge a search merely on the basis that he has a possessory interest in the property seized during the search.
D was a visitor to a house belonging to Marcuess. The police arrived with a warrant to arrest Marcuess on drug charges; while there, they conducted a search of D and of several other visitors, including Cox, a friend of D’s. In Cox’s handbag, they found LSD and other drugs, ownership of which was immediately claimed by D.
The Supreme Court held that possession of the seized items must be evaluated like any other basis for a Fourth Amendment claim, i.e., it will be relevant only if it confers a legitimate expectation of privacy with respect to the item and search.
If the facts fit Rawlings v. Kentucky then the person doesn’t have a legitimate expectation of privacy. If it starts to get greyer, use the factors to help you analyze the situation to whether or not a person has a legitimate expectation of privacy.
Rawlings Factors:
1. Length of relationship At the time petitioner dumped drugs into Cox’s purse, he had only known her for a few days.
2. Seek or receive access to purse prior to bailment?
3. Did petitioner have any right to exclude other person’s access to Cox’s purse?
4. A longtime acquaintance had free access to Cox’s purse
5. Did petitioner take normal precautions to maintain his privacy?
6. Petitioner had no subjective expectation that Cox’s purse would remain free from governmental intrusion.
We don’t have a lot of bright-line rules here. If you have an interest in a house or a car, you’ve got a legitimate expectation of privacy. If you’re an overnight guest, you might have a legitimate expectation of privacy - beyond that it is an analysis with the Carter and Rawlings factors.
THE STATE ACTOR REQUIREMENT
Private Search
Burdeau v. McDowell
(1921)
• Who must be involved in search for 4th Amendment to apply?
This comes up a lot of times in informant situations. Circumstances to be considered in this test include:
1. The motive of the private actor;
2. Any compensation or other benefit the private actor receives from the government; and
3. The advice, direction, and level of participation given by the government.
Example: An informant brings dope to the police. He can bring it to the police because it was a private search. Credibility might be an issue but that’s not a constitutional question, it is an evidentiary issue (quality of evidence).
Using this test, if it is found that the private actor was sufficiently influenced and supported by the state, the exclusionary rule will apply to any evidence obtained by the private actor.
Example 2: If the police tell the informant what to do, it’s not a private search anymore but a search that implicates the Constitution. Under the totality of the circumstances, the informant was acting as an agent for the government.
Exclusionary Rule - Limitations:
Hudson v. Michigan
126 S.Ct. 2159 (2006)
• “In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial – incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.”
The police executed a search warrant on Hudson where drugs were seized. The police knocked and announced their presence but only gave a 3-5 second window before the police entered the house.
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--in total--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 48 individual baggies of cocaine was found on the living room coffee table.
The question presented to the Court was whether violation of the knock and announce rule requires a court to suppress all evidence found in the search. The Court issued its opinion on June 15, 2006.
The Court held that evidence seized in violation of the knock-and-announce rule could be used against a defendant in a later criminal trial in comport with the Fourth Amendment and that judges cannot suppress such evidence for a knock and announce violation alone.
Unlike previous cases addressing the knock-and-announce requirement, the Court did not need to address the question of whether the knock-and-announce rule was violated, as the State of Michigan conceded the violation at trial. The question before the Court was regarding the remedy that should be afforded Hudson for the violation.
The majority notes that the Court first adopted an exclusionary rule for evidence seized without a warrant in Weeks v. United States, 232 U.S. 383 (1914), which was applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961), but points out that the exclusionary rule was limited by later decisions. After discussing these decisions, Scalia writes:
[E]xclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence.
Scalia distinguishes evidence seized in warrantless searches from evidence seized in searches that violated the knock-and-announce rule, noting that:
[ex]clusion of the evidence obtained by a warrantless search vindicates [the] entitlement [of citizens to shield their persons, houses, papers, and effects, from the government’s scrutiny]. The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government’s eyes.
The interests protected by the knock-and-announce rule, according to Scalia, are to protect police officers from surprised residents retaliating in presumed self-defense, to protect private property from damage, and to protect the "privacy and dignity" of residents. Scalia says that the knock-and-announce rule "has never protected . . . one’s interest in preventing the government from seeing or taking evidence described in a warrant."
The majority opinion goes on to note that the costs of exclusion for knock and announce violations outweigh the benefits of admitting the evidence. Scalia states that the costs are small, but that "suppression of all evidence[] amount[s] in many cases to a get-out-of-jail-free card." The Court states that exclusion of evidence has little or no deterrence effect, especially considering that deterrents (a civil action against the police department and internal discipline for officers) already exist. Scalia ends the portion of his opinion which constitutes the majority opinion with praise for the "increasing professionalism" of the police force over the last half-century, which he says makes some concerns expressed in past cases by the Court obsolete.
The Dissent:
Breyer says that the strongest argument for application of the exclusionary rule to knock-and-announce violations is that it serves as a strong deterrent to unlawful government behavior. At the very least, according to Breyer, eliminating the exclusionary rule from consideration for knock-and-announce violations will cause some government agents to find it less risky to violate the rule. Pointing out that civil remedies are not an adequate deterrent, Breyer says,
[t]he cases reporting knock-and-announce violations are legion . . . [y]et the majority . . . has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation . . . . [C]ivil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time.
There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment "sound the word of promise to the ear but break it to the hope."
This is the criminal trial context.
Corbett: This may be a very small limitation or it could be indicative of a much larger trend that the Court is interested in pursuing.
In Terry v. Ohio probable cause was never attainable in that situation, but the police did what they were supposed to do so the Court created the Terry line of thinking.
Probable cause is required to get a warrant. There are other situations that are equivalent of a full-blown arrest that we call Major League Seizures and Major League Searches, for which you need probable cause, which means you need an individualized suspicion.
For Special Needs Searches/Seizures you do not need any suspicion – no individualized suspicion is necessary. The court asks: Is this the equivalent of a special needs search or an administrative, regulatory type search? Is it a need that goes beyond the need of normal law enforcement? Is not criminal investigative in nature? Once they’ve determined that it is something that falls into that category, then they say, let’s asses it using the reasonableness prong as described in Camara. We are going to use the Reasonableness Balancing Test – GI vs. DI. It’s very similar to Terry v. Ohio but there is no individualized suspicion. If the GI outweighs the DI – sometimes referred to as the interests of the defendant, then the court says that it is reasonable and hence if it’s reasonable then it is also constitutional.
There are some types of searches that could be special needs searches that are conducted by police officers. Just because it’s a special needs search doesn’t mean that the evidence can’t be used in a criminal case. In fact, they often are. That doesn’t mean that it makes it a criminal investigative search for which there has to be individualized suspicion in the first place. That being said, there could be some searches that are so criminal investigative in nature, that they are not properly called special needs searches, or administrative searches or regulatory searches, they’re more like a criminal investigative search for which you need individualized suspicion., reasonable suspicion or probable cause depending on the kind of search that it happens to be.
As a defense attorney you are looking at it and saying: First, criminal search? You need to have individualized suspicion. Didn’t have it? Hence, it’s unconstitutional. If the court says that doesn’t work, then in the alternative, if you are going to call it a special needs search then the GI outweighs the DI. Use each of those cases as little examples of how these are categorized. If the facts change a little bit, then the outcome might change – need to look at the totality of the circumstances.
We talked about Lidster and when that case was first argued before the Supreme Court, it was called a special needs search because the conduct of the police has to be investigating the specific individual that they are stopping/seizing/searching. That’s not what happened in Lidster. The people they were stopping were potential witnesses. A slight variation by the Supreme Court.
Read the Chandler v. Miller handout for clarification.
Parolee Test (a new test???)
Samson v. California
126 S. Ct. 2193 (2006)
• Weighing parolee’s “substantially diminished” privacy interest against the state’s “substantial” interests in reintegrating offenders into society and in protecting the public from potential recidivists
A California statute that says every parolee can be searched without probable cause. It sounds like a special needs search. In Griffin it was a search of a parolee’s home. Presumably if it’s a special needs search you don’t need individualized suspicion. In Knights the court left open the question of having any suspicion at all to search a parolee. That was not resolved in Knights because they had reasonable suspicion. The question they are going to address in this case is, do you have to have any suspicion to search parolees? A Parolee in California does not have a high expectation of privacy as opposed to a probationer. Parolees are an extension of your prison term; probation is an alternative to being incarcerated.
If you were to envision what the California police officer’s were doing, what do you think is happening? The police ask him if he is on parole, if he says yes, that empowers the police in California to arrest him or search him. The court says it’s ok. How do they arrive at that conclusion? The legal analysis that the court uses to say it’s constitutional under the Fourth Amendment is the Court uses is the Reasonableness Balance Test (GI vs. DI).
FN 3, Page 89 in Supplement: “Because we find that the search at issue here is reasonable under our general Fourth Amendment approach, we need not reach the issue whether ‘acceptance of the search condition constituted consent in the Schneckloth v. Bustamonte sense of a complete waiver of his Fourth Amendment rights…nor do we address whether California’s parole search condition is justified as a special need under Griffin v. Wisconsin, because our holding under general Fourth Amendment principles renders such an examination unnecessary.”
The GI that outweighs the DI: Recidivism. Newly released parolees are a hazard – search them before they commit another crime. A parolee is one step away of being a prisoner so they have a severely diminished expectation of privacy. The degree of intrusiveness is low. The court said that there are limitations under California law that makes it constitutionally permissible. California police officers cannot arrest/search/seize when it become arbitrary or for harassment. They can only do it when they have knowledge that the person stopped for the search is a parolee.
The Sliding Scale of Privacy:
In order to search Regular Guy, you have to have Probable Cause.
In order to make the stop of Terry Guy you have to have Reasonable Suspicion.
In order to stop Probationer Guy, you need Reasonable Suspicion or Less.
In order to stop Parolee Guy, you need Knowledge of Parolee Status.
In order to stop Prisoner Guy, Nothing is Necessary.
Administrative Inspections
New York v. Burger
482 US 691 (1987)
• Warrantless business inspection upheld with “closely regulated” junkyard business.
Special Needs vs. Ordinary Law Enforcement
EXCLUSIONARY RULE
Assuming that a Fourth Amendment violation has occurred, what remedy if any do we invoke? What alternatives do we have that the Supreme Court has given us?
Wolf v. Colorado
(1949)(Frankfurter, J)
• Exclusionary Rule announced in Weeks v. United States not extended to the states.
The Weeks Test: In a federal criminal case, a violation of the Fourth Amendment, the end result is evidence should be suppressed. The Weeks doctrine was a matter of judicial implication – meaning that it’s created by the Court to address the wrongs. The Supreme Court said that in federal criminal cases it has to exist. In regards to its requirement in state cases under the Wolf case, the Weeks exclusionary rule was not applicable under Wolf. In Wolf it was not a matter of judicial implication.
States have their own remedies. In order for the Supreme Court to tell the states what to do, it has to be constitutional. The Supreme Court will oftentimes look to see how many states follow a certain procedure in order to determine if it’s constitutional or not.
Mapp v. Ohio (1961)(Clark, J)
• Overruling Wolf: Exclusionary Rule applicable to states.
If the other states are doing it then it must be constitutional. In part that is what they are doing here.
The Court is concerned about the quality of the remedies.
The new rule is: Evidence that is unconstitutionally seized will be excluded at trial in a state criminal case. The US Supreme Court can tell the states to do it as well when it implicates the Constitution. If it doesn’t violate the Constitution, the Supreme Court can’t review it.
The two main purposes served by the rule are:
1. To deter the police by removing the incentive to disregard the Fourth Amendment; and
2. Judicial integrity. Is the court breaking the law by allowing evidence to be used in court that was obtained illegally?
The costs and the benefits:
The benefit of applying the exclusionary rule is that it deters police from doing it in the future.
The cost is relevant and reliable evidence will not be admitted. (Corbett: That’s a pretty big cost.)
LIMITATIONS ON EXCLUSIONARY RULE
Pennsylvania Board of Probation and Parole v. Scott
(1998)(Thomas, J)
• Exclusionary Rule does not apply in parole revocation hearings.
• Relying on Calandra, Janis, and Lopez-Mendoza, Court declined “to extend the operation of the exclusionary rule beyond the criminal trial context”
The Exclusionary Rule applies in a criminal trial context.
One 1958 Plymouth Sedan v. Pennsylvania
• Exclusionary Rule also applies in a civil forfeiture hearing, because it is a quasi-criminal proceeding.
You’ve got a constitutional violation and using this exclusionary rule, evidence can be suppressed if it applies to a criminal trial context. In all the other situations, you are not going to prevent the evidence from coming in by using the exclusionary rule to prohibit the admission of evidence in various other hearings – whether they are deportation hearings, habeas corpus proceedings, civil tax proceedings brought by a different sovereign, probation violation hearings and grand jury proceedings.
You use the Cost/Benefit Test. If the benefit is low, then the cost is high.
The benefit: Deterrence of the police
United States v. Calandra
(1974)(Powell, J)
• Grand Jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from an earlier unlawful search.
Evidence that is arguably excludable evidence because of a constitutional violation from a criminal trial proceeding is not inadmissible in a grand jury proceeding, which is a hearing to determine whether or not there’s probable cause that a particular person committed a particular crime and whether or not an indictment should be issued.
United States v. Janis
(1976)(Blackmun, J)
• Exclusionary Rule does not apply in civil tax proceedings when civil proceedings brought by different sovereign than that of offending officers.
State police who seized a large quantity of gambling proceeds, did not bring it to the state IRS, they brought it to the federal IRS and ultimately the Court said the Fourth Amendment exclusionary rule does not apply to civil tax proceeding brought by a different sovereign.
The distinction is state police bringing it to the federal IRS.
INS v. Lopez-Mendoza
(1984)(O’Connor, J)
• Exclusionary Rule does not apply in civil deportation proceedings.
Stone v. Powell
(1976)(Powell, J)
• Exclusionary Rule has only limited applicability in federal habeas corpus proceedings brought to overturn state criminal convictions.
Stone is a state prisoner, who has had a state criminal case (Powell is the warden). In the state criminal case, they have had a full and fair opportunity to litigate their Fourth Amendment claim. They brought it up in a motion to suppress prior to trial and the court denied the motion. Stone is convicted and he appeals, all the while he is incarcerated.
The arresting police officer is not thinking whether or not the evidence will be excluded from a habeas corpus proceeding five years later – there is no deterrent impact at all. The Court says, as long as the defendant has had a full and fair opportunity to litigate his Fourth Amendment claim in state court, then you can’t apply the exclusionary rule in a habeas corpus proceeding.
The Cost: excluding reliable evidence of guilt – it often frees the guilty (court language).
The Benefit: Deterrence. The Court said there is minimal deterrence here over and above that which would have been achieved based upon what happened at the trial court level in the criminal trial context.
As long as the defendant had a full and fair opportunity to litigate the Fourth Amendment claim in state court, he is not going to be able to raise it in the habeas corpus context.
Page 1636 in Supplement:
“The exclusionary rule is a judicially created means of effectuating the rights secured by the Fourth Amendment. The primary justification for the exclusionary rule is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any reparation comes too late. Despite the broad deterrence purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, ‘the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. United States v. Calandra. Thus, our refusal in Calandra to extend the exclusionary rule to grand jury proceedings was based on a balancing of the potential contribution to the effectuation of the Fourth Amendment through deterrence of police misconduct.”
The court did not overrule Mapp, they simply said that it only applies in certain contexts – criminal trial contexts.
If it’s judicially created, they cannot tell the states what to do because it has to be constitutional. If it’s constitutional enough, they can tell the states that they have to follow it. But, it’s not so constitutional that they can’t limit its application.
STANDING
“STANDING”: Who can challenge an illegal search? As a general rule, only a person whose personal Fourth Amendment rights were intruded upon by the police can challenge an illegal search. It’s effectively a limitation on the exclusionary rule because while the exclusionary rule exists, and is intended to allow for the suppression of evidence that is seized in violation of the Constitution. If your Fourth Amendment rights were not intruded upon by the police, you don’t have a constitutional leg to stand on – you cannot try and get the evidence suppressed and have the police deterred by the application of the exclusionary rule.
Standing has been on EXAMS
The “Standing” Requirement:
Alderman v. US
(1969)(White, J)
• “Suppression of the product of a 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”
Your personal rights have to be violated by the search itself or at least be implicated enough to give you standing to be able to bring the claim. Standing is one thing – it doesn’t automatically mean there has been a violation of the Fourth Amendment, it just means that you can bring it to court and then determine if there was a violation under the Fourth Amendment.
What language from the Fourth Amendment supports this approach? Two words and they go together:
•“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searchers and seizures….”
In other words: The right of a person to be secure in his or her person, house, papers, and effects.
If the evidence is there and you have no legitimate expectation of privacy in the invaded place, you are out of luck.
Rakas v. Illinois
(1978)(Rehnquist, J)
• Passenger expectation of privacy in a car; “Standing” requirement should be treated merely as a reiteration of the basic point that a person may not successfully challenge a search unless his own rights were violated.
FACTS: A police officer received a radio call notifying him of a robbery of a clothing store. The report described the getaway car. Shortly thereafter, the officer spotted an automobile which he thought might be the getaway car. He and several other officers stopped the vehicle. The occupants of the automobile, Rakas (D) and two female companions (D1), were ordered out of the car. The officers then searched the interior of the vehicle. They discovered a box of rifle shells in the glove compartment, which had been locked, and a sawed-off rifle under the front passenger seat. After discovering the rifle and the shells, the officers took Ds to the station and placed them under arrest. D1 moved to suppress the rifle and shells seized from the car on the ground that the search violated the Fourth and Fourteenth Amendments. They conceded that they did not own the automobile and were simply passengers; D of the car had been the driver of the vehicle at the time of the search. Nor did they assert that they owned the rifle or the shells seized.
The passengers do not have an interest in the car. The Appellate Court affirmed the trial court's denial of D1's motion to suppress because it held that "without a proprietary or other similar interest in an automobile, a mere passenger therein lacks standing to challenge the legality of the search of the vehicle." The Illinois Supreme Court denied petitioners leave to appeal. The Supreme Court granted certiorari.
The Supreme Court never resolved the question of whether this search was constitutional.
The Supreme Court determined that an individual has standing when the individual has an expectation of privacy. Being the target of an investigation does not give you a legitimate expectation of privacy alone – it may be part of the overall factors.
Being on the premises alone does not give you standing. If you are in a private place with the permission of the owner does not necessarily give you standing. The controlling test is a legitimate expectation of privacy.
RULE OF LAW: A party must allege a violation of her Fourth Amendment rights in order to assert standing under the exclusionary rule. In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
The Court held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence.
The difference between the legitimate expectation of privacy in Rakas from the reasonable expectation of privacy in Katz is:
The Difference:
Search under Katz (Fourth Amendment): Whether there is an actual subjective expectation of privacy and whether society is prepared to recognize it as reasonable. Katz deals with the general question of whether the activity of the police intruded upon anybody’s Fourth Amendment rights.
Search under Rakas (Standing question): Whether or not the particular person’s (the movant in a motion to suppress) rights were implicated enough that they have standing to bring the question before the court. Rakas deals with whether a particular movant’s Fourth Amendment rights were intruded upon by the police giving them standing.
They are necessarily intertwined but they are separate and discreet questions using the same language.
Example: A person that says they have standing, and a court could say, you’re right – you have a legitimate expectation of privacy in the invaded place, but the court ultimately concludes that there is no violation of the Fourth Amendment.
Example 2: A person does not have standing, but along the lines of the Payner case, there could be a clear violation of the Fourth Amendment where there was a reasonable expectation of privacy and no justification for it.
Minnesota v. Carter
(1998)
• One “who is merely present with the consent of the householder may not” claim the protections of the 4th Amendment
A police officer went to an apartment building to investigate a tip from a confidential informant. The officer looked in the same basement window through a gap in the closed blind and observed a cocaine bagging operation for several minutes. Affidavits for a search warrant were prepared. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were Carter and Johns (Ds). They observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle's floor. Ds were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags. After seizing the car, the police returned to apartment 103 and arrested Kimberly Thompson, who is not a party to this appeal. There was cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. The informant identified Ds and Thompson as the three people he had observed placing the powder into baggies. Thompson was the lessee of the apartment. Ds lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Ds had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. In return for the use of the apartment, Ds had given Thompson one-eighth of an ounce of the cocaine. Ds moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. Ds' argued that the initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment. The trial court held that Ds were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that the Officer's observation was not a search within the meaning of the Fourth Amendment. Ds were convicted. The Minnesota Court of Appeals held that respondent D did not have "standing" to object to the Officer's actions. A divided Minnesota Supreme Court reversed, holding that Ds had "standing" to claim the protection of the Fourth Amendment because they had "'a legitimate expectation of privacy in the invaded place.' The Supreme Court granted certiorari.
The question before the Supreme Court is whether Carter (the guest) has standing to challenge the evidence that was admitted pursuant to an illegal search (the police officer peeking in the window.
The Supreme Court concluded that it didn’t really matter because he didn’t have standing.
The threshold question: Whether the people challenging evidence have standing to challenge the admissibility of the evidence.
Carter did not have a legitimate expectation of privacy because where a person visits a house only briefly, and does so for a purely business purpose, the Court held that no legitimate expectation of privacy exists. Consequently, no Fourth Amendment search took place when a police officer standing outside the building peered into the apartment through half-drawn blinds.
Factors for whether or not a guest has a legitimate expectation of privacy:
1. Purpose of the visit;
2. Overnight guest or not;
3. Length of the stay.
Dissent: The power to exclude implies the power to include.
United States v. Payner
(1980)(Powell, J) The briefcase caper case
• Supervisory power can’t be used to prohibit evidence from third party search when defendant lacked standing to contest search.
This is a classic example of how a third party’s rights can be violated without any concern.
The “Standing” Requirement:
Rawlings v. Kentucky
(1980) (Rehnquist, J)
• A person may not successfully challenge a search merely on the basis that he has a possessory interest in the property seized during the search.
D was a visitor to a house belonging to Marcuess. The police arrived with a warrant to arrest Marcuess on drug charges; while there, they conducted a search of D and of several other visitors, including Cox, a friend of D’s. In Cox’s handbag, they found LSD and other drugs, ownership of which was immediately claimed by D.
The Supreme Court held that possession of the seized items must be evaluated like any other basis for a Fourth Amendment claim, i.e., it will be relevant only if it confers a legitimate expectation of privacy with respect to the item and search.
If the facts fit Rawlings v. Kentucky then the person doesn’t have a legitimate expectation of privacy. If it starts to get greyer, use the factors to help you analyze the situation to whether or not a person has a legitimate expectation of privacy.
Rawlings Factors:
1. Length of relationship At the time petitioner dumped drugs into Cox’s purse, he had only known her for a few days.
2. Seek or receive access to purse prior to bailment?
3. Did petitioner have any right to exclude other person’s access to Cox’s purse?
4. A longtime acquaintance had free access to Cox’s purse
5. Did petitioner take normal precautions to maintain his privacy?
6. Petitioner had no subjective expectation that Cox’s purse would remain free from governmental intrusion.
We don’t have a lot of bright-line rules here. If you have an interest in a house or a car, you’ve got a legitimate expectation of privacy. If you’re an overnight guest, you might have a legitimate expectation of privacy - beyond that it is an analysis with the Carter and Rawlings factors.
THE STATE ACTOR REQUIREMENT
Private Search
Burdeau v. McDowell
(1921)
• Who must be involved in search for 4th Amendment to apply?
This comes up a lot of times in informant situations. Circumstances to be considered in this test include:
1. The motive of the private actor;
2. Any compensation or other benefit the private actor receives from the government; and
3. The advice, direction, and level of participation given by the government.
Example: An informant brings dope to the police. He can bring it to the police because it was a private search. Credibility might be an issue but that’s not a constitutional question, it is an evidentiary issue (quality of evidence).
Using this test, if it is found that the private actor was sufficiently influenced and supported by the state, the exclusionary rule will apply to any evidence obtained by the private actor.
Example 2: If the police tell the informant what to do, it’s not a private search anymore but a search that implicates the Constitution. Under the totality of the circumstances, the informant was acting as an agent for the government.
Exclusionary Rule - Limitations:
Hudson v. Michigan
126 S.Ct. 2159 (2006)
• “In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial – incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.”
The police executed a search warrant on Hudson where drugs were seized. The police knocked and announced their presence but only gave a 3-5 second window before the police entered the house.
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--in total--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 48 individual baggies of cocaine was found on the living room coffee table.
The question presented to the Court was whether violation of the knock and announce rule requires a court to suppress all evidence found in the search. The Court issued its opinion on June 15, 2006.
The Court held that evidence seized in violation of the knock-and-announce rule could be used against a defendant in a later criminal trial in comport with the Fourth Amendment and that judges cannot suppress such evidence for a knock and announce violation alone.
Unlike previous cases addressing the knock-and-announce requirement, the Court did not need to address the question of whether the knock-and-announce rule was violated, as the State of Michigan conceded the violation at trial. The question before the Court was regarding the remedy that should be afforded Hudson for the violation.
The majority notes that the Court first adopted an exclusionary rule for evidence seized without a warrant in Weeks v. United States, 232 U.S. 383 (1914), which was applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961), but points out that the exclusionary rule was limited by later decisions. After discussing these decisions, Scalia writes:
[E]xclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence.
Scalia distinguishes evidence seized in warrantless searches from evidence seized in searches that violated the knock-and-announce rule, noting that:
[ex]clusion of the evidence obtained by a warrantless search vindicates [the] entitlement [of citizens to shield their persons, houses, papers, and effects, from the government’s scrutiny]. The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government’s eyes.
The interests protected by the knock-and-announce rule, according to Scalia, are to protect police officers from surprised residents retaliating in presumed self-defense, to protect private property from damage, and to protect the "privacy and dignity" of residents. Scalia says that the knock-and-announce rule "has never protected . . . one’s interest in preventing the government from seeing or taking evidence described in a warrant."
The majority opinion goes on to note that the costs of exclusion for knock and announce violations outweigh the benefits of admitting the evidence. Scalia states that the costs are small, but that "suppression of all evidence[] amount[s] in many cases to a get-out-of-jail-free card." The Court states that exclusion of evidence has little or no deterrence effect, especially considering that deterrents (a civil action against the police department and internal discipline for officers) already exist. Scalia ends the portion of his opinion which constitutes the majority opinion with praise for the "increasing professionalism" of the police force over the last half-century, which he says makes some concerns expressed in past cases by the Court obsolete.
The Dissent:
Breyer says that the strongest argument for application of the exclusionary rule to knock-and-announce violations is that it serves as a strong deterrent to unlawful government behavior. At the very least, according to Breyer, eliminating the exclusionary rule from consideration for knock-and-announce violations will cause some government agents to find it less risky to violate the rule. Pointing out that civil remedies are not an adequate deterrent, Breyer says,
[t]he cases reporting knock-and-announce violations are legion . . . [y]et the majority . . . has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation . . . . [C]ivil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time.
There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment "sound the word of promise to the ear but break it to the hope."
This is the criminal trial context.
Corbett: This may be a very small limitation or it could be indicative of a much larger trend that the Court is interested in pursuing.
Exceptions to Exclusionary Rule
• Have seen that the Supreme Court has imposed limitations on kinds of cases in which Exclusionary Rule can be invoked and on who can invoke it.
• General Rule: At least in state and federal criminal trials, illegally obtained evidence can’t be admitted against Defendant whose personal 4th Amendment rights were violated.
• Exceptions to the Exclusionary Rule itself?
Three Exceptions:
• Good Faith
• Inevitable Discovery Exception
• Impeachment Exception
THE GOOD-FAITH EXCEPTION
“Evidence obtained pursuant to a search warrant later declared to be invalid may be introduced at a defendant’s criminal trial in prosecutor’s case-in-chief if a reasonably well-trained officer would have believed that the warrant was valid.” Dressler, 21.06(A)(1).
United States v. Leon
(1984)(White, J)
• Does the exclusionary rule allow the prosecution to use evidence “obtained by police officers who acted in reasonable reliance on a search warrant issued by a neutral and detached magistrate who was later found to be improperly issued because it was not supported by probable cause”?
The police could have been more careful but they didn’t do anything illegal.
Cost: “Some guilty defendants may go free or receive reduced sentences”
Benefit: Deterrent effect on the issuing judge or magistrate, and a deterrent effect on the police officer seeking the warrant.
To determine whether the good-faith exclusionary exception should apply:
The officer’s reliance on the magistrate’s probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.
How do you determine that?
It’s objectively reasonable when a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.
FN 23, page 228:
Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances – including whether the warrant application had previously been rejected by a different magistrate – may be considered.
Situations in which the good-faith exception will not apply:
a) Misleading affidavit
b) “Rubber-stamping” magistrate
c) Inadequate affidavit
d) Facially deficient warrant
In order to get a warrant, in addition to probable cause you need the place to be searched and items to be seized.
If reasonable minds differ, we apply the good-faith exception to the exclusionary rule. According to the Court, it has to be objectively reasonable under the circumstances.
• Have seen that the Supreme Court has imposed limitations on kinds of cases in which Exclusionary Rule can be invoked and on who can invoke it.
• General Rule: At least in state and federal criminal trials, illegally obtained evidence can’t be admitted against Defendant whose personal 4th Amendment rights were violated.
• Exceptions to the Exclusionary Rule itself?
Three Exceptions:
• Good Faith
• Inevitable Discovery Exception
• Impeachment Exception
THE GOOD-FAITH EXCEPTION
“Evidence obtained pursuant to a search warrant later declared to be invalid may be introduced at a defendant’s criminal trial in prosecutor’s case-in-chief if a reasonably well-trained officer would have believed that the warrant was valid.” Dressler, 21.06(A)(1).
United States v. Leon
(1984)(White, J)
• Does the exclusionary rule allow the prosecution to use evidence “obtained by police officers who acted in reasonable reliance on a search warrant issued by a neutral and detached magistrate who was later found to be improperly issued because it was not supported by probable cause”?
The police could have been more careful but they didn’t do anything illegal.
Cost: “Some guilty defendants may go free or receive reduced sentences”
Benefit: Deterrent effect on the issuing judge or magistrate, and a deterrent effect on the police officer seeking the warrant.
To determine whether the good-faith exclusionary exception should apply:
The officer’s reliance on the magistrate’s probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.
How do you determine that?
It’s objectively reasonable when a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.
FN 23, page 228:
Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances – including whether the warrant application had previously been rejected by a different magistrate – may be considered.
Situations in which the good-faith exception will not apply:
a) Misleading affidavit
b) “Rubber-stamping” magistrate
c) Inadequate affidavit
d) Facially deficient warrant
In order to get a warrant, in addition to probable cause you need the place to be searched and items to be seized.
If reasonable minds differ, we apply the good-faith exception to the exclusionary rule. According to the Court, it has to be objectively reasonable under the circumstances.
Massachusetts v. Sheppard
(1984)(White, J)
• Warrant not invalid due to technical error committed by the issuing magistrate.
The magistrate had pre-printed forms which indicated searches for illegal drugs and the police had an affidavit and wanted a warrant for evidence pertaining to a homicide. The magistrate said that he would cross-out the illegal drug language. The police go to execute the warrant but as it turns out, the warrant did not satisfy the requirement as the magistrate did not fix the language.
The Court said that there was an objectively reasonable basis for the officer’s mistaken belief that the warrant authorized the search that the police officers conducted. The screw up was on the magistrate. The police were able to rely on the magistrate’s changing of the wording.
Groh v. Ramirez
124 S. Ct. 1284 (2004) (Stevens, J.)
• What about when the mistake is primarily the fault of the officer?
A police officer mistakenly filled out a search warrant, and the error went unnoticed by the magistrate who issued the warrant. The mistake wasn’t discovered until after the warrant was executed. The Court reasoned that the warrant was facially deficient and the police officer may not argue that he reasonably relied on the magistrate’s assurance that the warrant didn’t contain any errors.
Illinois v. Krull
(1987) (Blackmun, J)
• After Leon, Exclusionary Rule does not require suppression of evidence obtained pursuant to objectively reasonable reliance on a statute later held to violate Fourth Amendment.
This was a search pursuant to a statute passed by the legislature that authorizes warrantless inspections of the records of licensed sellers of motor vehicles looking for stolen parts. The statute is unconstitutional. The question becomes whether or not the good-faith exception should apply because the police were relying on the legislature’s capacity to pass a constitutional law – was reliance on that objectively reasonable? The legislature screwed up, not the police officers.
The Court applies the good faith exception because the police officers objectively relied on the statute that was later deemed to be unconstitutional.
(1984)(White, J)
• Warrant not invalid due to technical error committed by the issuing magistrate.
The magistrate had pre-printed forms which indicated searches for illegal drugs and the police had an affidavit and wanted a warrant for evidence pertaining to a homicide. The magistrate said that he would cross-out the illegal drug language. The police go to execute the warrant but as it turns out, the warrant did not satisfy the requirement as the magistrate did not fix the language.
The Court said that there was an objectively reasonable basis for the officer’s mistaken belief that the warrant authorized the search that the police officers conducted. The screw up was on the magistrate. The police were able to rely on the magistrate’s changing of the wording.
Groh v. Ramirez
124 S. Ct. 1284 (2004) (Stevens, J.)
• What about when the mistake is primarily the fault of the officer?
A police officer mistakenly filled out a search warrant, and the error went unnoticed by the magistrate who issued the warrant. The mistake wasn’t discovered until after the warrant was executed. The Court reasoned that the warrant was facially deficient and the police officer may not argue that he reasonably relied on the magistrate’s assurance that the warrant didn’t contain any errors.
Illinois v. Krull
(1987) (Blackmun, J)
• After Leon, Exclusionary Rule does not require suppression of evidence obtained pursuant to objectively reasonable reliance on a statute later held to violate Fourth Amendment.
This was a search pursuant to a statute passed by the legislature that authorizes warrantless inspections of the records of licensed sellers of motor vehicles looking for stolen parts. The statute is unconstitutional. The question becomes whether or not the good-faith exception should apply because the police were relying on the legislature’s capacity to pass a constitutional law – was reliance on that objectively reasonable? The legislature screwed up, not the police officers.
The Court applies the good faith exception because the police officers objectively relied on the statute that was later deemed to be unconstitutional.
Arizona v. Evans
(1995)(Rehnquist, CJ)
• Leon good faith exception applies to non-warrant search.
The court clerk screwed up here. He failed to notify police that a particular warrant had been quashed; as a result the warrant was still in the computer system. After the arrest, the police find marijuana but there was no warrant.
In the end the Court applies the Leon good-faith exception to the non-warrant search based upon the objectively reasonable conduct of the police officer relying on the existence of the warrant in the computer system.
Corbett: In the lower court opinion of State v. White, the Florida court system said that if the screw up was by the police department (which it was in this case), we are not going to apply the good-faith exception to the exclusionary rule.
Maryland v. Garrison
(1987)(Stevens, J)
• Search warrant not defective for accidentally describing multiple unit structure as one-unit structure as the validity of the warrant “must be assessed on the basis of the information that the officer disclosed, or had a duty to discover and disclose, to the issuing Magistrate.”
In this case, there was a search warrant for a third-floor apartment. When the police get to the third floor, they find out there are multiple apartments there and they ended up searching the entire third floor rather than a specific place.
The Court said that as long as the mistake was objectively reasonable and understandable, the good-faith exception to the exclusionary rule would apply. Based upon what they knew at the time and what they told the magistrate, they were allowed to search the whole floor because that’s what the warrant said they could search.
Corbett: The moral of this story seems to be that only unreasonable police error is subject to the exclusionary rule.
IMPEACHMENT EXCEPTION
Walder v. United States
347 U.S. 62 (1954)(Frankfurter, J)
• Use of Illegally Obtained Evidence for Impeachment Purposes: “Defendant ‘opened the door,’ for purposes of attacking the defendant’s credibility, to evidence of heroin seized from the defendant’s home, in his presence, in an earlier unrelated case.”
If a witness takes the stand and says that he or she has never sold drugs to anyone, the prosecutor can then introduce previously suppressed evidence to impeach the witness. The Court will specifically say that it is only for purposes of impeachment and not for relying on it as substantive evidence of guilt.
The Court creates this exception to the exclusionary rule to keep the defense from lying on the stand. Otherwise the witness would be allowed to perjure himself or herself and the court wouldn’t be able to do anything about it. Policy: The perjury is worse than allowing the evidence to come in for purposes of impeachment.
United States v. Havens
446 U.S. 620 (1980)(White, J)
• Denial by Defendant on Cross-examination That She Previously Possessed Particular Evidence of a Crime Allowed Prosecutor, in Order to Impeach Her Credibility, to Introduce Illegally Obtained Evidence That Contradicted Her Cross-examination Claim
Two lawyers were stopped by customs officials as they arrived in Miami after a flight from Lima, Peru. Both were searched; cocaine was found in several makeshift pockets sewn onto a tee-shirt McLeroth was wearing. In D’s baggage, the officials found no drugs but seized a tee-shirt frown which pieces had been cut that matched the pieces that had been sewn into McLeroth’s tee-shirt. At D’s trial, in his direct testimony he simply denied being involved in smuggling on the trip in question; he did not testify at all as to the tee-shirt incident. On cross-examination, he was asked whether he had had anything to do with the sewing of the cotton swatches to make pockets on McLeroth’s tee-shirt (which he denied) and whether he had a certain tee-shirt with missing swatches in his luggage when he came through customs (which he also denied). The prosecution then sought to introduce the tee-shirt with the missing pieces to impeach D’s testimony; the trial court admitted this for the limited purpose of impeaching D’s credibility.
The Supreme Court upheld the admission of the tee-shirt for impeachment purposes. The Court noted that the questions on the tee-shirt “would have been suggested to a reasonably competent cross-examiner by D’s direct testimony; they were not ‘smuggled in.’ ”
From the rationale of Harris and Oregon v. Hass: “truth is a fundamental goal of our legal system and that when defendants testify, they must testify truthfully or suffer the consequences,” is just as applicable to statements made on cross-examination as it is to those made on direct testimony.
Corbett: It’s not just any cross-examination, the Court limits it. “[We] hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been legally obtained.”
So it’s not just any cross-examination, it’s a cross-examination reasonably suggested by the defendant’s direct examination. The direct examination allowed for cross-examination that was reasonably suggested by his direct examination on the transportation of cocaine specifically in regards to swatch cloth. Does that put you at a quandary as a defense attorney? Don’t let him testify is the extreme measure. Hopefully with a well-counseled client, you can tell them to not go into this area.
James v. Illinois
493 U.S. 307 (1990)(Brennan, J)
• Prosecutor May Not Use Statement Obtained From Defendant in Violation of the 4th Amendment to Impeach a Defense Witness Who Provides Testimony in Conflict With Defendant’s Statement.
This is where the Court is going to draw the line. They are not going to use the impeachment exception to impeach a witness. We are going to put a limit to the impeachment exception here.
James is illegally taken into custody lacking probable cause. He gives a statement regarding the color of his hair which was different at the time of the crime. He made that statement at the time he was illegally in custody and hence it was a suppressed statement.
The question becomes, does the statement come in when it’s a witness on the stand who said that his hair was different at the time of the crime? Even though this goes against what the defendant said regarding dying his hair after the crime, the Court says no, they will not allow the impeachment exception to go this far. The defense must feel comfortable putting on its witnesses. The cost is just too high.
INEVITABLE DISCOVERY EXCEPTION
Nix v. Williams
(WILLIAMS II), 467 U.S. 431 (1984)(Burger, CJ)
• Should the Exclusionary Rule apply if the evidence would have been inevitably found?
FACTS: Williams (D) was convicted of murder based on evidence Police got in violation of D's Sixth Amendment right to counsel, a constitutional violation. The court suppressed D's statement but allowed evidence regarding the location and forensics found at the location, and the results of post mortem medical and chemical tests. The trial court ruled that if the police had not located the body by D's statement they would have taken up the search where they had left off and would have found the body very quickly.
While in transport, there is a discussion between defendant and a police officer and the defendant leads him to the body. Simultaneously there’s a search going on by the citizens and the police.
The Court allows the evidence of the body to be entered into evidence because it would have inevitably been discovered, creating the inevitable discovery exception to the exclusionary rule. The evidence would have been discovered in essentially the same condition through legal means being a search warrant. Even though we have a clear constitutional violation, the Court created an exception.
The exclusionary rule was adopted and is needed to deter police from violations of constitutional and statutory procedures. By contrast, the derivative evidence rule and the inevitable discovery doctrines ensure that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The prosecutor has to show by a preponderance of the evidence (51% or more probable than not) that this illegally discovered evidence would have inevitably been discovered anyway.
The dissenters (Brennan and Marshall) would have required clear and convincing evidence that the information would inevitably been discovered.
FRUIT OF THE POISONOUS TREE AND RELATED MATTERS
• Question: Assuming Illegal Search or Seizure, and No Limitation or Exception Applies, How Far Does the Taint of the Illegality Extend, i.e., How Far Down the Chain of Evidence Discovered, Will Exclusionary Rule Be Applied?
• Short Answer: Only As Far As Necessary to Maintain Sufficient Deterrent Against 4th Amendment Violations.
The difference between fruit of the poisonous tree and the exclusionary rule is which evidence you are going to apply it to. They both exclude evidence whether it’s the direct evidence (exclusionary rule) or whether it is something farther on down the chain of evidence (fruit of the poisonous tree).
You don’t get the benefit of the exclusionary rule or fruit of the poisonous tree unless you have standing. There may be a constitutional violation but if you don’t have standing, you don’t have a leg to stand on.
Page 906: Silverthorne Lumber Co. v. United States (1920). Police officers illegally search an account book. The police officers tell the magistrate that based upon the information they obtained from the contents of the book they have probable cause to go back and take the book. The Court said “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”
Corbett: You can’t use the information in the book to be able to go back and get it. This is fruit of the poisonous tree – the fruit being the contents of the book and the poisonous tree being the illegal entry into this building in the first place.
The Court goes on: “Of course this does not mean that the facts thus obtained become sacred or inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
What the court did for us in this case was to introduce the concept and also creating, thru their language, an independent source exception to the doctrine of the fruit of the poisonous tree.
Nardone v. United States (1939) established the “attenuation” doctrine, being the first to authoritatively recognize that even where the challenged evidence did not have an “independent source” it might still be admissible. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.
Corbett: They are saying that if there is no independent source as described in Silverthorne, and there is an illegal search and seizure and there is a connection between the Fourth Amendment violation and the retrieval of evidence that does not mean that in all instances the evidence will not be admissible. Even if there is no independent source and there is this causal connection, it is possible that the connection between the illegality and the retrieval of the evidence might have become so attenuated (diluted or thinned out) as to dissipate the taint.
Fruit of the Poisonous Tree
Wong Sun v. United States
371 U.S. 471 (1963)(Brennan, J)
• Verbal Evidence as the Fruit of Illegal Search and Seizure.
FACTS: Hom Way was arrested and heroin was found in his possession. Hom Way then led police to Blackie Toy. They went to laundry described by Way as Toy's place of business. When Toy answered the door, police identified themselves to him and chased him through his house. No narcotics were found. Toy then narced on Johnny Yee. The police located Yee and then arrested him because of the heroin in his house. Toy and Yee were taken to the police station. Yee then narced on Wong Sun and Wong Sun was arrested. Toy, Yee, and Sun were arraigned and later released. A few days later, they were all interrogated at the police station. They were advised of their rights. After interrogation, statements were prepared but Toy would not sign his. Sun had difficulty understanding and refused to sign but admitted to the accuracy of the statements. At Sun's trial, Way did not testify. Yee was excused after he invoked the Fifth Amendment. The evidence the government possessed was Toy's statements, the heroin surrendered by Yee, Toy's unsigned statement and Sun's similar statement. The Court of Appeals found that Toy's arrest had no probable cause.
The evidence was found at Yee’s place but he was not charged. Yee is not a party to this case presumably because he is going to testify against the other two.
There are three pieces of evidence:
1. Statement of Toy;
2. Physical evidence found at Yee’s place; and
3. Statement of Wong Sun.
Based upon the facts, but-for the illegal arrest of toy none of this evidence would have been found. There was no independent source or any indication that the discovery of evidence would have been inevitable.
There was illegality at Toy’s place as well as at Wong Sun’s.
What Is the Appropriate Test According to the Wong Sun Court?
• “[M]ore apt question in such a case is ‘whether, granting establishment of the primary illegality (a Fourth Amendment violation in this case) [the evidence] has been come at by (1); exploitation of that illegality or instead by (2); means sufficiently distinguishable to be purged of the primary taint.”
For the defense attorney, using the Wong Sun Test, in order to get the evidence suppressed, you have to prove that the evidence has been come at by exploitation of the illegality (the primary illegality or the Fourth Amendment violation).
For the prosecutor, you would have to prove that the evidence was come at by means sufficiently distinguishable to be purged of the primary taint.
An example of by means sufficiently distinguishable to be purged of the primary taint is attenuation.
See Handout. If the drugs are found at Yee’s house, how does Toy get standing? Because it started at a place where he had standing. Because Wong Sun had been released for several days after his arrest and because he returned voluntarily to make the statement, “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ”
Good cop, bad cop hypos:
If the good cops arrive first, and the bad cops arrive five minutes later: Independent Source.
If the bad cops arrive first, and the good cops arrive five minutes later: Inevitable Discovery.
Segura v. United States
(1984)(Burger, CJ)
• Warrant Search as the Fruit of an Illegal Entry and Occupation of the Premises.
Upon suspicion of narcotics, Segura was arrested and taken to his apartment. The agents entered the apartment without requesting or obtaining permission. The agents observed drug paraphernalia in the apartment. The agents request a warrant for drugs – things they did not see. Due to an administrative delay, the search warrant wasn’t issued until 19 hours later. The police later found narcotics and records of narcotics transactions.
The issue was whether or not the items not observed, i.e. the drugs, during the illegal entry should still be admitted under the independent source exception. The subsequent valid search warrant was based upon what they saw during the initial sweep. The government said no, based upon the independent source exception the evidence should be admitted. The Court said this is a means sufficiently distinguishable to be purged of the primary taint. This was not come at the exploitation of an illegality.
The court reasoned that prior the illegal entry, the police already knew enough to obtain a search warrant; therefore, they could have staked out the apartment from the outside (which would have been legal), gotten the warrant, and seized the very same evidence. The police thus had an “independent source” for that evidence.
Independent Source Doctrine
Murray v. United States
487 U.S. 533 (1988)(Scalia, J)
• Independent Source Doctrine May Apply If Evidence Is Initially Discovered Unlawfully but Is Subsequently Obtained in a Manner Independent of the Original Discovery.
The police arrested drug traffickers outside a locked warehouse. Instead of immediately getting a warrant, they forced open the warehouse and saw bales of marijuana inside. They then submitted a warrant application to a magistrate, in which they did not mention that they had already been inside the warehouse and seen marijuana. The magistrate granted the warrant: the officers re-entered the warehouse, “rediscovered” the marijuana and seized it.
The court ruled that so long as the prosecution could show on remand that the officers would have applied for and properly received a warrant even had they not first entered the warehouse, the marijuana could be admitted under the independent source exception.
The Dissenters argued that the majority’s view gives the police a strong incentive to make warrantless entries.
A prosecutor would have to establish that it genuinely was an independent source. This would not have been the case if the police’s 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; therefore the case was remanded to determine whether or not the authorized search was an independent source of the challenged evidence.
Scope: Segura and Murray taken together, appear to allow admission of evidence under the “independent source” exception when three requirements are satisfied:
1. Illegally on premises: The police must have been on the premises illegally at the moment they discovered the evidence or contraband in question.
2. Probable cause for search warrant: Although the police did not have a search warrant at the moment of entry they must have had knowledge that would have entitled them to procure a search warrant.
3. Police would have applied for warrant: The police must show that they would probably have eventually applied for a search warrant even had they not engaged in the illegality.
Fruit of the Poisonous Tree
Brown v. Illinois
422 U.S. 590 (1975)(Blackmun, J)
• Confession As the Fruit of an Illegal Arrest.
The defendant was arrested without probable cause so that he could be questioned concerning a murder. After his arrest, the defendant was taken to the police station, given the Miranda warnings, and interrogated. Within two hours of his arrest, the defendant made an incriminating statement. Several hours after that, in a second interrogation session (again prefaced by Miranda warnings), the defendant made a second incriminating statement.
The Supreme Court held that both confessions were the tainted fruit of the illegal arrest, and were therefore illegal. The Court rejected the state court’s view that the giving of Miranda warnings always purges the taint of an illegal arrest.
Corbett: Just by giving the Miranda rights would substantially dilute the quality and the purpose of the exclusionary rule if the police thought that the Fifth Amendment Miranda rule was a cure all for all Fourth Amendment woes.
Other relevant factors to be considered:
1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances;
3. The purpose and flagrancy of the official misconduct; and
4. The voluntariness of the statement is a threshold requirement.
And the burden of showing admissibility by the totality of the circumstances rests, of course, on the prosecution.
There still is the potential that a statement given after an illegal arrest could be admissible but in general, merely giving Miranda warnings is not going to be enough to purge the taint.
Dunaway v. New York
(1979)(Brennan, J)
• Reaffirming Brown V. Illinois: Miranda Warnings Alone Are Insufficient to Attenuate the Taint of an Unconstitutional Arrest.
If a confession results from an unlawful arrest or search, it must be excluded even though Miranda warnings were given and Miranda rights were waived. The Court stressed the voluntariness of the confession was not enough to purge the taint in view of the fact that the suspect was retained in custody without probable cause, and confessed before any “intervening events” broke the connection between seizure and confession.
Corbett: The police didn’t have probable cause; hence, the confession should be suppressed. What is important are Justice Stevens’s comments: The factors in the Brown case are just that – factors in a test. You don’t plug these questions in and you get your answer – they are merely factors in a test. The bottom line: We get an affirmation of Brown and secondly, as to the factor annunciated in Brown, these are just factors in a test – they don’t tell you the answer, they only help to analyze the problem
Taylor v. Alabama
457 U.S. 687 (1982)(Marshall, J)
• Application of Brown-Dunaway Rule.
Once again an illegal arrest based upon no probable cause. The defendant was arrested for robbery without a warrant or probable cause, based on an uncorroborated informant’s tip. Defendant was given Miranda warnings, fingerprinted, and questioned. He was then placed in a line-up, at which the victims were unable to identify him. The police told the defendant that his prints had been found on some items which were handled by one of the participants at the scene of the crime. After a conversation with some friends, the defendant signed a written confession. Six hours has passed between the arrest and confession. The defendant was given Miranda warnings three times before he confessed. The confession is suppressed as fruit of the illegal arrest.
The Supreme Court is not likely to give the prosecutor much of a chance in these situations unless it is very clear. The facts described here are still not good enough to say that under the totality of circumstances, the Brown factors were met.
(1995)(Rehnquist, CJ)
• Leon good faith exception applies to non-warrant search.
The court clerk screwed up here. He failed to notify police that a particular warrant had been quashed; as a result the warrant was still in the computer system. After the arrest, the police find marijuana but there was no warrant.
In the end the Court applies the Leon good-faith exception to the non-warrant search based upon the objectively reasonable conduct of the police officer relying on the existence of the warrant in the computer system.
Corbett: In the lower court opinion of State v. White, the Florida court system said that if the screw up was by the police department (which it was in this case), we are not going to apply the good-faith exception to the exclusionary rule.
Maryland v. Garrison
(1987)(Stevens, J)
• Search warrant not defective for accidentally describing multiple unit structure as one-unit structure as the validity of the warrant “must be assessed on the basis of the information that the officer disclosed, or had a duty to discover and disclose, to the issuing Magistrate.”
In this case, there was a search warrant for a third-floor apartment. When the police get to the third floor, they find out there are multiple apartments there and they ended up searching the entire third floor rather than a specific place.
The Court said that as long as the mistake was objectively reasonable and understandable, the good-faith exception to the exclusionary rule would apply. Based upon what they knew at the time and what they told the magistrate, they were allowed to search the whole floor because that’s what the warrant said they could search.
Corbett: The moral of this story seems to be that only unreasonable police error is subject to the exclusionary rule.
IMPEACHMENT EXCEPTION
Walder v. United States
347 U.S. 62 (1954)(Frankfurter, J)
• Use of Illegally Obtained Evidence for Impeachment Purposes: “Defendant ‘opened the door,’ for purposes of attacking the defendant’s credibility, to evidence of heroin seized from the defendant’s home, in his presence, in an earlier unrelated case.”
If a witness takes the stand and says that he or she has never sold drugs to anyone, the prosecutor can then introduce previously suppressed evidence to impeach the witness. The Court will specifically say that it is only for purposes of impeachment and not for relying on it as substantive evidence of guilt.
The Court creates this exception to the exclusionary rule to keep the defense from lying on the stand. Otherwise the witness would be allowed to perjure himself or herself and the court wouldn’t be able to do anything about it. Policy: The perjury is worse than allowing the evidence to come in for purposes of impeachment.
United States v. Havens
446 U.S. 620 (1980)(White, J)
• Denial by Defendant on Cross-examination That She Previously Possessed Particular Evidence of a Crime Allowed Prosecutor, in Order to Impeach Her Credibility, to Introduce Illegally Obtained Evidence That Contradicted Her Cross-examination Claim
Two lawyers were stopped by customs officials as they arrived in Miami after a flight from Lima, Peru. Both were searched; cocaine was found in several makeshift pockets sewn onto a tee-shirt McLeroth was wearing. In D’s baggage, the officials found no drugs but seized a tee-shirt frown which pieces had been cut that matched the pieces that had been sewn into McLeroth’s tee-shirt. At D’s trial, in his direct testimony he simply denied being involved in smuggling on the trip in question; he did not testify at all as to the tee-shirt incident. On cross-examination, he was asked whether he had had anything to do with the sewing of the cotton swatches to make pockets on McLeroth’s tee-shirt (which he denied) and whether he had a certain tee-shirt with missing swatches in his luggage when he came through customs (which he also denied). The prosecution then sought to introduce the tee-shirt with the missing pieces to impeach D’s testimony; the trial court admitted this for the limited purpose of impeaching D’s credibility.
The Supreme Court upheld the admission of the tee-shirt for impeachment purposes. The Court noted that the questions on the tee-shirt “would have been suggested to a reasonably competent cross-examiner by D’s direct testimony; they were not ‘smuggled in.’ ”
From the rationale of Harris and Oregon v. Hass: “truth is a fundamental goal of our legal system and that when defendants testify, they must testify truthfully or suffer the consequences,” is just as applicable to statements made on cross-examination as it is to those made on direct testimony.
Corbett: It’s not just any cross-examination, the Court limits it. “[We] hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been legally obtained.”
So it’s not just any cross-examination, it’s a cross-examination reasonably suggested by the defendant’s direct examination. The direct examination allowed for cross-examination that was reasonably suggested by his direct examination on the transportation of cocaine specifically in regards to swatch cloth. Does that put you at a quandary as a defense attorney? Don’t let him testify is the extreme measure. Hopefully with a well-counseled client, you can tell them to not go into this area.
James v. Illinois
493 U.S. 307 (1990)(Brennan, J)
• Prosecutor May Not Use Statement Obtained From Defendant in Violation of the 4th Amendment to Impeach a Defense Witness Who Provides Testimony in Conflict With Defendant’s Statement.
This is where the Court is going to draw the line. They are not going to use the impeachment exception to impeach a witness. We are going to put a limit to the impeachment exception here.
James is illegally taken into custody lacking probable cause. He gives a statement regarding the color of his hair which was different at the time of the crime. He made that statement at the time he was illegally in custody and hence it was a suppressed statement.
The question becomes, does the statement come in when it’s a witness on the stand who said that his hair was different at the time of the crime? Even though this goes against what the defendant said regarding dying his hair after the crime, the Court says no, they will not allow the impeachment exception to go this far. The defense must feel comfortable putting on its witnesses. The cost is just too high.
INEVITABLE DISCOVERY EXCEPTION
Nix v. Williams
(WILLIAMS II), 467 U.S. 431 (1984)(Burger, CJ)
• Should the Exclusionary Rule apply if the evidence would have been inevitably found?
FACTS: Williams (D) was convicted of murder based on evidence Police got in violation of D's Sixth Amendment right to counsel, a constitutional violation. The court suppressed D's statement but allowed evidence regarding the location and forensics found at the location, and the results of post mortem medical and chemical tests. The trial court ruled that if the police had not located the body by D's statement they would have taken up the search where they had left off and would have found the body very quickly.
While in transport, there is a discussion between defendant and a police officer and the defendant leads him to the body. Simultaneously there’s a search going on by the citizens and the police.
The Court allows the evidence of the body to be entered into evidence because it would have inevitably been discovered, creating the inevitable discovery exception to the exclusionary rule. The evidence would have been discovered in essentially the same condition through legal means being a search warrant. Even though we have a clear constitutional violation, the Court created an exception.
The exclusionary rule was adopted and is needed to deter police from violations of constitutional and statutory procedures. By contrast, the derivative evidence rule and the inevitable discovery doctrines ensure that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The prosecutor has to show by a preponderance of the evidence (51% or more probable than not) that this illegally discovered evidence would have inevitably been discovered anyway.
The dissenters (Brennan and Marshall) would have required clear and convincing evidence that the information would inevitably been discovered.
FRUIT OF THE POISONOUS TREE AND RELATED MATTERS
• Question: Assuming Illegal Search or Seizure, and No Limitation or Exception Applies, How Far Does the Taint of the Illegality Extend, i.e., How Far Down the Chain of Evidence Discovered, Will Exclusionary Rule Be Applied?
• Short Answer: Only As Far As Necessary to Maintain Sufficient Deterrent Against 4th Amendment Violations.
The difference between fruit of the poisonous tree and the exclusionary rule is which evidence you are going to apply it to. They both exclude evidence whether it’s the direct evidence (exclusionary rule) or whether it is something farther on down the chain of evidence (fruit of the poisonous tree).
You don’t get the benefit of the exclusionary rule or fruit of the poisonous tree unless you have standing. There may be a constitutional violation but if you don’t have standing, you don’t have a leg to stand on.
Page 906: Silverthorne Lumber Co. v. United States (1920). Police officers illegally search an account book. The police officers tell the magistrate that based upon the information they obtained from the contents of the book they have probable cause to go back and take the book. The Court said “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”
Corbett: You can’t use the information in the book to be able to go back and get it. This is fruit of the poisonous tree – the fruit being the contents of the book and the poisonous tree being the illegal entry into this building in the first place.
The Court goes on: “Of course this does not mean that the facts thus obtained become sacred or inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
What the court did for us in this case was to introduce the concept and also creating, thru their language, an independent source exception to the doctrine of the fruit of the poisonous tree.
Nardone v. United States (1939) established the “attenuation” doctrine, being the first to authoritatively recognize that even where the challenged evidence did not have an “independent source” it might still be admissible. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.
Corbett: They are saying that if there is no independent source as described in Silverthorne, and there is an illegal search and seizure and there is a connection between the Fourth Amendment violation and the retrieval of evidence that does not mean that in all instances the evidence will not be admissible. Even if there is no independent source and there is this causal connection, it is possible that the connection between the illegality and the retrieval of the evidence might have become so attenuated (diluted or thinned out) as to dissipate the taint.
Fruit of the Poisonous Tree
Wong Sun v. United States
371 U.S. 471 (1963)(Brennan, J)
• Verbal Evidence as the Fruit of Illegal Search and Seizure.
FACTS: Hom Way was arrested and heroin was found in his possession. Hom Way then led police to Blackie Toy. They went to laundry described by Way as Toy's place of business. When Toy answered the door, police identified themselves to him and chased him through his house. No narcotics were found. Toy then narced on Johnny Yee. The police located Yee and then arrested him because of the heroin in his house. Toy and Yee were taken to the police station. Yee then narced on Wong Sun and Wong Sun was arrested. Toy, Yee, and Sun were arraigned and later released. A few days later, they were all interrogated at the police station. They were advised of their rights. After interrogation, statements were prepared but Toy would not sign his. Sun had difficulty understanding and refused to sign but admitted to the accuracy of the statements. At Sun's trial, Way did not testify. Yee was excused after he invoked the Fifth Amendment. The evidence the government possessed was Toy's statements, the heroin surrendered by Yee, Toy's unsigned statement and Sun's similar statement. The Court of Appeals found that Toy's arrest had no probable cause.
The evidence was found at Yee’s place but he was not charged. Yee is not a party to this case presumably because he is going to testify against the other two.
There are three pieces of evidence:
1. Statement of Toy;
2. Physical evidence found at Yee’s place; and
3. Statement of Wong Sun.
Based upon the facts, but-for the illegal arrest of toy none of this evidence would have been found. There was no independent source or any indication that the discovery of evidence would have been inevitable.
There was illegality at Toy’s place as well as at Wong Sun’s.
What Is the Appropriate Test According to the Wong Sun Court?
• “[M]ore apt question in such a case is ‘whether, granting establishment of the primary illegality (a Fourth Amendment violation in this case) [the evidence] has been come at by (1); exploitation of that illegality or instead by (2); means sufficiently distinguishable to be purged of the primary taint.”
For the defense attorney, using the Wong Sun Test, in order to get the evidence suppressed, you have to prove that the evidence has been come at by exploitation of the illegality (the primary illegality or the Fourth Amendment violation).
For the prosecutor, you would have to prove that the evidence was come at by means sufficiently distinguishable to be purged of the primary taint.
An example of by means sufficiently distinguishable to be purged of the primary taint is attenuation.
See Handout. If the drugs are found at Yee’s house, how does Toy get standing? Because it started at a place where he had standing. Because Wong Sun had been released for several days after his arrest and because he returned voluntarily to make the statement, “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ”
Good cop, bad cop hypos:
If the good cops arrive first, and the bad cops arrive five minutes later: Independent Source.
If the bad cops arrive first, and the good cops arrive five minutes later: Inevitable Discovery.
Segura v. United States
(1984)(Burger, CJ)
• Warrant Search as the Fruit of an Illegal Entry and Occupation of the Premises.
Upon suspicion of narcotics, Segura was arrested and taken to his apartment. The agents entered the apartment without requesting or obtaining permission. The agents observed drug paraphernalia in the apartment. The agents request a warrant for drugs – things they did not see. Due to an administrative delay, the search warrant wasn’t issued until 19 hours later. The police later found narcotics and records of narcotics transactions.
The issue was whether or not the items not observed, i.e. the drugs, during the illegal entry should still be admitted under the independent source exception. The subsequent valid search warrant was based upon what they saw during the initial sweep. The government said no, based upon the independent source exception the evidence should be admitted. The Court said this is a means sufficiently distinguishable to be purged of the primary taint. This was not come at the exploitation of an illegality.
The court reasoned that prior the illegal entry, the police already knew enough to obtain a search warrant; therefore, they could have staked out the apartment from the outside (which would have been legal), gotten the warrant, and seized the very same evidence. The police thus had an “independent source” for that evidence.
Independent Source Doctrine
Murray v. United States
487 U.S. 533 (1988)(Scalia, J)
• Independent Source Doctrine May Apply If Evidence Is Initially Discovered Unlawfully but Is Subsequently Obtained in a Manner Independent of the Original Discovery.
The police arrested drug traffickers outside a locked warehouse. Instead of immediately getting a warrant, they forced open the warehouse and saw bales of marijuana inside. They then submitted a warrant application to a magistrate, in which they did not mention that they had already been inside the warehouse and seen marijuana. The magistrate granted the warrant: the officers re-entered the warehouse, “rediscovered” the marijuana and seized it.
The court ruled that so long as the prosecution could show on remand that the officers would have applied for and properly received a warrant even had they not first entered the warehouse, the marijuana could be admitted under the independent source exception.
The Dissenters argued that the majority’s view gives the police a strong incentive to make warrantless entries.
A prosecutor would have to establish that it genuinely was an independent source. This would not have been the case if the police’s 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; therefore the case was remanded to determine whether or not the authorized search was an independent source of the challenged evidence.
Scope: Segura and Murray taken together, appear to allow admission of evidence under the “independent source” exception when three requirements are satisfied:
1. Illegally on premises: The police must have been on the premises illegally at the moment they discovered the evidence or contraband in question.
2. Probable cause for search warrant: Although the police did not have a search warrant at the moment of entry they must have had knowledge that would have entitled them to procure a search warrant.
3. Police would have applied for warrant: The police must show that they would probably have eventually applied for a search warrant even had they not engaged in the illegality.
Fruit of the Poisonous Tree
Brown v. Illinois
422 U.S. 590 (1975)(Blackmun, J)
• Confession As the Fruit of an Illegal Arrest.
The defendant was arrested without probable cause so that he could be questioned concerning a murder. After his arrest, the defendant was taken to the police station, given the Miranda warnings, and interrogated. Within two hours of his arrest, the defendant made an incriminating statement. Several hours after that, in a second interrogation session (again prefaced by Miranda warnings), the defendant made a second incriminating statement.
The Supreme Court held that both confessions were the tainted fruit of the illegal arrest, and were therefore illegal. The Court rejected the state court’s view that the giving of Miranda warnings always purges the taint of an illegal arrest.
Corbett: Just by giving the Miranda rights would substantially dilute the quality and the purpose of the exclusionary rule if the police thought that the Fifth Amendment Miranda rule was a cure all for all Fourth Amendment woes.
Other relevant factors to be considered:
1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances;
3. The purpose and flagrancy of the official misconduct; and
4. The voluntariness of the statement is a threshold requirement.
And the burden of showing admissibility by the totality of the circumstances rests, of course, on the prosecution.
There still is the potential that a statement given after an illegal arrest could be admissible but in general, merely giving Miranda warnings is not going to be enough to purge the taint.
Dunaway v. New York
(1979)(Brennan, J)
• Reaffirming Brown V. Illinois: Miranda Warnings Alone Are Insufficient to Attenuate the Taint of an Unconstitutional Arrest.
If a confession results from an unlawful arrest or search, it must be excluded even though Miranda warnings were given and Miranda rights were waived. The Court stressed the voluntariness of the confession was not enough to purge the taint in view of the fact that the suspect was retained in custody without probable cause, and confessed before any “intervening events” broke the connection between seizure and confession.
Corbett: The police didn’t have probable cause; hence, the confession should be suppressed. What is important are Justice Stevens’s comments: The factors in the Brown case are just that – factors in a test. You don’t plug these questions in and you get your answer – they are merely factors in a test. The bottom line: We get an affirmation of Brown and secondly, as to the factor annunciated in Brown, these are just factors in a test – they don’t tell you the answer, they only help to analyze the problem
Taylor v. Alabama
457 U.S. 687 (1982)(Marshall, J)
• Application of Brown-Dunaway Rule.
Once again an illegal arrest based upon no probable cause. The defendant was arrested for robbery without a warrant or probable cause, based on an uncorroborated informant’s tip. Defendant was given Miranda warnings, fingerprinted, and questioned. He was then placed in a line-up, at which the victims were unable to identify him. The police told the defendant that his prints had been found on some items which were handled by one of the participants at the scene of the crime. After a conversation with some friends, the defendant signed a written confession. Six hours has passed between the arrest and confession. The defendant was given Miranda warnings three times before he confessed. The confession is suppressed as fruit of the illegal arrest.
The Supreme Court is not likely to give the prosecutor much of a chance in these situations unless it is very clear. The facts described here are still not good enough to say that under the totality of circumstances, the Brown factors were met.
New York v. Harris
495 U.S. 14 (1990)(White, J)
• Confession as the Fruit of a Payton Violation: Where Police Have Probable Cause to Arrest a Suspect, Exclusionary Rule Does Not Bar the State’s Use of a Statement Made by Defendant Outside of His Home Even Though Statement Is Taken after Defendant Arrested in Home in Violation of Payton.
In Harris, the police had probable cause to arrest defendant for murder. They went into defendant’s apartment to arrest him without first getting an arrest warrant, which they could readily have done. There were no exigent circumstances. The entire arrest was unconstitutional in light of Payton v. New York which says absent exigent circumstances or consent, you need an arrest warrant to arrest somebody in his or her home. The officers arrested defendant at his house and read him Miranda warnings. The police took defendant to the station and again gave him Miranda warnings. Defendant signed a written confession there.
In contrast to the other cases, there was probable cause here. Brown, Dunaway and Taylor all involved confessions that stemmed from arrests which were made without probable cause. The custody of defendant at the police station was not unlawful. Since the police had a justification to question defendant prior to his arrest, his subsequent police station confession was “not an exploitation of the illegal entry into defendant’s home.” Defendant’s confession therefore did not need to be suppressed – the whole tainted fruit analysis the Court said needs to be performed only where “the challenged evidence is in some sense the product of illegal government activity,” which was not the case here.
United States v. Crews
445 U.S. 463 (1980) (Brennan, J)
See Class Handout
• Identification of a Person as a “Fruit” of an Illegal Arrest.
Defendant robbed and sexually assaulted several women. He was detained without probable cause by the police and his picture was taken; he was then released. One of the victims identified his picture from a photographic array and defendant was re-arrested.
The exception the Court recognized appears to be independent source. The victim’s ability to ID the defendant preceded the illegality and that appears to be the basis for it. This appears to be fruit of a non-poisonous tree because this independent evidence – the ability to be able to ID preceded the retrieval of the photo illegally.
If that’s true, why did the government concede that the line-up ID and the photo were fruit of the poisonous tree? Because the government didn’t need them. The most powerful identification is the one in court – “that’s the guy who assaulted me.”
United States v. Ceccolini
435 U.S. 268 (1978)(Rehnquist, J)
• Witness as a Fruit.
A policeman happened to be in defendant’s flower shop, talking to a friend, when he noticed an envelope with money sticking out of it. He picked it up and looked inside of it and discovered money as well as policy slips. He then asked his friend whom the envelope belonged to. She said that it was the defendant’s and she was asked by the defendant to give it to someone. The policeman passed the information on to the FBI and an agent went to the policeman’s friends house and she later agreed to testify in court to the events which led to defendant’s perjury conviction.
The question is whether or not the witness’s testimony should be suppressed. The Court concludes that the witness could testify because witnesses often voluntarily come forward to testify, and therefore, there is generally less of an incentive for police to make an illegal search for such witnesses, as opposed to a search for physical evidence.
Page 915: “The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means. Corbett: That sounds like inevitable discovery.
“And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.” Corbett: That sounds like attenuation. So which one is it? I don’t know. All I know is that the Court uses language that seems to be both and seems to be recognizing that this witness was discovered because of the illegality and the other hand, witnesses exist and are likely to come forward inevitably.
Summary:
• Supreme Court Continuing to Narrow the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine While Broadening Rights of Prosecutors to Use Evidence Discovered Arguably As the Result of Constitutional Violations.
WIRETAPPING
Berger v. New York
388 U.S. 41 (1967)(Clark, J)
• Wiretapping Equals a Fourth Amendment Search
Petitioner was indicted and convicted of conspiracy to bribe the Chairman of the New York State Liquor Authority based upon evidence obtained by eavesdropping. An order pursuant to § 813-a of the N.Y.Code of Crim.Proc. permitting the installation of a recording device in an attorney's office for a period of 60 days was issued by a justice of the State Supreme Court.
Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of a district attorney, or of the attorney general or of an officer above the rank of sergeant of any police department."
Held: The language of § 813-a is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area, and is, therefore, violative of the Fourth and Fourteenth Amendments.
How Did Congress Respond 1 Year Later?
• Passed Statute That Attributed to Address These Concerns - Title III of 1968 Crime Control Act, 18 USC 2510, et seq.
Corbett: I expect you to know when it applies – when law enforcement would go to a court to be able to get a wiretap order to install a wiretap. A federal statute applies to federal crimes by federal officers.
Wiretapping:
Title III
• Wiretap Order Required For (only available for certain enumerated crimes - 18 USC 2516(1) and (2)):
– Non-consensual content-based interceptions
– Of the contents
– Of any wire, electronic or oral communication
– Through the use of electronic, mechanical or other device
– That invades a reasonable expectation of privacy
You can only get the order through probable cause plus the showing that other means are too dangerous or other means have been already exhausted.
Page 482, FN a.: The US Supreme Court has never explicitly considered the facial validity of Title III. But there is no hint in the Court’s many decisions interpreting various provisions of Title III that the statute is facially invalid. Moreover, the lower Federal Courts have consistently upheld the statute against constitutional challenge.
Corbett: Presumably this statute is better than the Berger statute and it gives greater protection.
WIRETAPPING
Title III
• Wiretap Order Required For (only available for certain enumerated crimes - 18 U.S.C. 2516(1) and (2)):
1. Non-consensual Interceptions; At least one party has not consented
2. Of the Contents; Content based – real time communication not numbers dial in or out
3. Of any Wire; (phone call), Electronic (email) or Oral Communication
4. Through the use of Electronic, Mechanical, or Other Device; Some kind of device is being used to intercept
5. That Invades a Reasonable Expectation of Privacy.
Hypo:
This statute applies to federal officers for federal cases, but that doesn’t mean that states couldn’t have a statute like this. The federal law says the states can do the same thing as long as it is along the same lines as the federal statute for it to be constitutionally permissible. There is no wiretap authority under Michigan law.
No expectation of privacy of numbers dialed because you are turning that information over to a third party anyway.
No expectation of privacy for listening though hotel room walls EXCEPT if you use a glass (some kind of device) to intercept.
No expectation of privacy to listen or record conversations in a restaurant.
Wiretapping
Dalia v. United States
(1979)(Powell, J)
• Electronic Surveillance Which Involves Covert Entry into Private Premises to Install Equipment.
1. Covert entry into private premises to install a listening device is not per se unreasonable, or violative of the Fourth Amendment.
2. Congress intended in Title III, to give courts authority to approve covert entry, even though Title III nowhere explicitly so states. Authorization of such entry is implicit in the Act’s limited approval of buggings and other electronic surveillance, since such surveillance frequently cannot be accomplished without it.
3. Nor is it required that the authorizing court explicitly approve covert entry in its order permitting the bug.
Undercover Agents
Hoffa v. United States
385 U.S. 293 (1966)(Stewart, J)
• When a Person Voluntarily Speaks to Another Person, That Person Assumes the Risk That the Listener Will Not Keep the Information Conveyed Confidential.
A teamster-turned-informant became a regular visitor to Hoffa’s hotel room and overheard conversations concerning plans to bribe jurors. The Court found Hoffa’s statements “totally voluntary.” No Fourth Amendment search or seizure occurred; Hoffa’s “misplaced trust” was his own fault and did not violate his consent to the informant’s entry into the hotel suite (admittedly an area as to which Hoffa was entitled to Fourth Amendment protection).
Dissenting opinion in the Lopez case: “The risk of being overheard by an eavesdropper or betrayed by an informer or deceived to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.”
495 U.S. 14 (1990)(White, J)
• Confession as the Fruit of a Payton Violation: Where Police Have Probable Cause to Arrest a Suspect, Exclusionary Rule Does Not Bar the State’s Use of a Statement Made by Defendant Outside of His Home Even Though Statement Is Taken after Defendant Arrested in Home in Violation of Payton.
In Harris, the police had probable cause to arrest defendant for murder. They went into defendant’s apartment to arrest him without first getting an arrest warrant, which they could readily have done. There were no exigent circumstances. The entire arrest was unconstitutional in light of Payton v. New York which says absent exigent circumstances or consent, you need an arrest warrant to arrest somebody in his or her home. The officers arrested defendant at his house and read him Miranda warnings. The police took defendant to the station and again gave him Miranda warnings. Defendant signed a written confession there.
In contrast to the other cases, there was probable cause here. Brown, Dunaway and Taylor all involved confessions that stemmed from arrests which were made without probable cause. The custody of defendant at the police station was not unlawful. Since the police had a justification to question defendant prior to his arrest, his subsequent police station confession was “not an exploitation of the illegal entry into defendant’s home.” Defendant’s confession therefore did not need to be suppressed – the whole tainted fruit analysis the Court said needs to be performed only where “the challenged evidence is in some sense the product of illegal government activity,” which was not the case here.
United States v. Crews
445 U.S. 463 (1980) (Brennan, J)
See Class Handout
• Identification of a Person as a “Fruit” of an Illegal Arrest.
Defendant robbed and sexually assaulted several women. He was detained without probable cause by the police and his picture was taken; he was then released. One of the victims identified his picture from a photographic array and defendant was re-arrested.
The exception the Court recognized appears to be independent source. The victim’s ability to ID the defendant preceded the illegality and that appears to be the basis for it. This appears to be fruit of a non-poisonous tree because this independent evidence – the ability to be able to ID preceded the retrieval of the photo illegally.
If that’s true, why did the government concede that the line-up ID and the photo were fruit of the poisonous tree? Because the government didn’t need them. The most powerful identification is the one in court – “that’s the guy who assaulted me.”
United States v. Ceccolini
435 U.S. 268 (1978)(Rehnquist, J)
• Witness as a Fruit.
A policeman happened to be in defendant’s flower shop, talking to a friend, when he noticed an envelope with money sticking out of it. He picked it up and looked inside of it and discovered money as well as policy slips. He then asked his friend whom the envelope belonged to. She said that it was the defendant’s and she was asked by the defendant to give it to someone. The policeman passed the information on to the FBI and an agent went to the policeman’s friends house and she later agreed to testify in court to the events which led to defendant’s perjury conviction.
The question is whether or not the witness’s testimony should be suppressed. The Court concludes that the witness could testify because witnesses often voluntarily come forward to testify, and therefore, there is generally less of an incentive for police to make an illegal search for such witnesses, as opposed to a search for physical evidence.
Page 915: “The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means. Corbett: That sounds like inevitable discovery.
“And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.” Corbett: That sounds like attenuation. So which one is it? I don’t know. All I know is that the Court uses language that seems to be both and seems to be recognizing that this witness was discovered because of the illegality and the other hand, witnesses exist and are likely to come forward inevitably.
Summary:
• Supreme Court Continuing to Narrow the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine While Broadening Rights of Prosecutors to Use Evidence Discovered Arguably As the Result of Constitutional Violations.
WIRETAPPING
Berger v. New York
388 U.S. 41 (1967)(Clark, J)
• Wiretapping Equals a Fourth Amendment Search
Petitioner was indicted and convicted of conspiracy to bribe the Chairman of the New York State Liquor Authority based upon evidence obtained by eavesdropping. An order pursuant to § 813-a of the N.Y.Code of Crim.Proc. permitting the installation of a recording device in an attorney's office for a period of 60 days was issued by a justice of the State Supreme Court.
Section 813-a authorizes the issuance of an "ex parte order for eavesdropping" upon "oath or affirmation of a district attorney, or of the attorney general or of an officer above the rank of sergeant of any police department."
Held: The language of § 813-a is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area, and is, therefore, violative of the Fourth and Fourteenth Amendments.
How Did Congress Respond 1 Year Later?
• Passed Statute That Attributed to Address These Concerns - Title III of 1968 Crime Control Act, 18 USC 2510, et seq.
Corbett: I expect you to know when it applies – when law enforcement would go to a court to be able to get a wiretap order to install a wiretap. A federal statute applies to federal crimes by federal officers.
Wiretapping:
Title III
• Wiretap Order Required For (only available for certain enumerated crimes - 18 USC 2516(1) and (2)):
– Non-consensual content-based interceptions
– Of the contents
– Of any wire, electronic or oral communication
– Through the use of electronic, mechanical or other device
– That invades a reasonable expectation of privacy
You can only get the order through probable cause plus the showing that other means are too dangerous or other means have been already exhausted.
Page 482, FN a.: The US Supreme Court has never explicitly considered the facial validity of Title III. But there is no hint in the Court’s many decisions interpreting various provisions of Title III that the statute is facially invalid. Moreover, the lower Federal Courts have consistently upheld the statute against constitutional challenge.
Corbett: Presumably this statute is better than the Berger statute and it gives greater protection.
WIRETAPPING
Title III
• Wiretap Order Required For (only available for certain enumerated crimes - 18 U.S.C. 2516(1) and (2)):
1. Non-consensual Interceptions; At least one party has not consented
2. Of the Contents; Content based – real time communication not numbers dial in or out
3. Of any Wire; (phone call), Electronic (email) or Oral Communication
4. Through the use of Electronic, Mechanical, or Other Device; Some kind of device is being used to intercept
5. That Invades a Reasonable Expectation of Privacy.
Hypo:
This statute applies to federal officers for federal cases, but that doesn’t mean that states couldn’t have a statute like this. The federal law says the states can do the same thing as long as it is along the same lines as the federal statute for it to be constitutionally permissible. There is no wiretap authority under Michigan law.
No expectation of privacy of numbers dialed because you are turning that information over to a third party anyway.
No expectation of privacy for listening though hotel room walls EXCEPT if you use a glass (some kind of device) to intercept.
No expectation of privacy to listen or record conversations in a restaurant.
Wiretapping
Dalia v. United States
(1979)(Powell, J)
• Electronic Surveillance Which Involves Covert Entry into Private Premises to Install Equipment.
1. Covert entry into private premises to install a listening device is not per se unreasonable, or violative of the Fourth Amendment.
2. Congress intended in Title III, to give courts authority to approve covert entry, even though Title III nowhere explicitly so states. Authorization of such entry is implicit in the Act’s limited approval of buggings and other electronic surveillance, since such surveillance frequently cannot be accomplished without it.
3. Nor is it required that the authorizing court explicitly approve covert entry in its order permitting the bug.
Undercover Agents
Hoffa v. United States
385 U.S. 293 (1966)(Stewart, J)
• When a Person Voluntarily Speaks to Another Person, That Person Assumes the Risk That the Listener Will Not Keep the Information Conveyed Confidential.
A teamster-turned-informant became a regular visitor to Hoffa’s hotel room and overheard conversations concerning plans to bribe jurors. The Court found Hoffa’s statements “totally voluntary.” No Fourth Amendment search or seizure occurred; Hoffa’s “misplaced trust” was his own fault and did not violate his consent to the informant’s entry into the hotel suite (admittedly an area as to which Hoffa was entitled to Fourth Amendment protection).
Dissenting opinion in the Lopez case: “The risk of being overheard by an eavesdropper or betrayed by an informer or deceived to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.”
United States v. White
401 U.S. 745 (1971)(White, J)
• No Constitutional Difference Between Informant Testifying at Trial About What He Heard a Defendant Say Versus Recording the Conversation or Carrying a Device That Enables Agents to Listen at a Separate Location.
In this case an informer carried a concealed radio transmitter that transmitted the conversations to the officers.
Since the associate could testify as to the conversation, the recording serves the same function but with increased reliability and accuracy.
NOTE ON THE RIGHT TO COUNSEL: The use of a bugged or unbugged informer against a suspect who has already been indicted may violate the suspect’s Sixth Amendment right to counsel. Once a suspect has been indicted and has counsel, it is a violation of that right to counsel for the secret agent to “deliberately elicit” incriminating statements form the suspect in the absence of counsel, and to pass these on to the prosecution for the use in the case involving the indictment.
INTERROGATIONS AND CONFESSIONS
Three Major Constitution Limitations:
1. Due Process clause of the 14th Amendment – Passed following the Civil War, provides in part: “… nor shall any State deprive any person of life, liberty, or property, without due process of law;”
2. 5th Amendment. Privilege Against Compelled Self-Incrimination: “No person…..shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”
3. 6th Amendment. Right to Counsel: “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.”
14TH AMENDMENT DUE PROCESS CLAUSE
Difficulty in Applying Voluntariness Test
• No bright line
• Examples: Mincey/Fulminante/Frazier v. Cupp/Miller v. Fenton/Colorado v. Connelly
Post Miranda always involves some kind of excessive police behavior.
1. VOLUNTARY: The confession must have been voluntary and not the product of (1) actual coercion (2) by the police
2. Page 554, Justice Frankfurter commented: “Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency.”
Corbett: The police have to obey the law while enforcing the law.
3. The voluntariness test can be made in conjunction with or alternatively to Miranda test. Footnote d on page 558 says that there are situations in which the due process clause is applicable when Miranda is not applicable:
Police question suspect not in custody.
When police question a suspect who waives his rights and agrees to talk, but denies any involvement in the crime
Moreover, the distinction between an involuntary confession and one obtained only in violation of Miranda is important in a number of procedural contexts:
i. E.g., use of the confession for impeachment purposes.
4. Voluntariness Test: What do we look to see if there is a due process violation? There is no bright line rule. There needs to be actual coercion (opposed to inherent coercion specified in Miranda Test) by the police. We look to the totality of the circumstances. No single factor is controlling. There are two basic categories of factors (not requirements):
a. Characteristics of the accused
ii. Age
iii. Experience with the criminal justice system
iv. Intelligence
v. Emotional and mental stability
vi. Physical condition and gender.
b. Circumstances of the interrogation
vii. Taking off the defendant’s clothes and keeping him naked for several hours
viii. Depriving the accused of his basic needs: food, water, sleep, air conditioning, heat, etc.
ix. Was the suspect advised of his rights
5. Problem with the Voluntariness Test
a. No bright line – totality of the circumstances
b. Test is vague
c. Test is subject to facts and circumstances
Test is subject to local pressure
Little uniformity in how the test is applied.
Was the suspect advised of his rights? It is only “a” factor.
6. Interrogation and Confessions – Due Process Limitations – Applying the Voluntariness Test:
Mincey v. Arizona
(1978)(Stewart, J)
Problems with the judicial subjective element of the “ voluntariness” analysis in a local court: “The more remote the court, the easier it is to consider the case in terms of a hypothetical defendant accused of crime, instead of a particular man whose guilt has been established.”
Wounded from a hospital raid and in the hospital (almost at the point of a coma) was questioned by a police officer. The Supreme Court reversed the lower AZ courts reasoning that “Mincey made it clear that he did not want to answer the detective’s questions. Weakened by pain and shock, isolated from family, friends and legal counsel, and barely conscious – Mincey’s will was simply overborne.”
The court held a Miranda violation and a due process violation. Note: The defense argued due process violation instead of the Miranda violation because the defense didn’t want it to be used in impeachment process.
This is a classic example of why the Due Process Clause argument is alive and well.
Arizona v. Fulminante
(1991)(White, J)
Confession invalidated as not voluntary due to offering (by paid government informant) to protect a prisoner from physical harm at the hands of other inmates if prisoner told him the truth about the murder in question.
In this case an informant who pretended to be an inmate told the D in prison that if he confesses to the killing he will protect the defendant from being killed by other prisoners.
The court held that the confession was coerced because defendant was in harms way for being a child killer and the informant knew that the defendant was receiving rough treatment from the other prisoners.
Note: The Constitution applies even though the person did not know the inmate was a police officer. Miranda was not necessary however. For Miranda to apply the person needs to know that the person he is talking to is an officer.
The Supreme Court applied the totality of the circumstances test.
Police Trickery
Frazier v. Cupp
(1969)
“The fact that the police misrepresented the statements that [the other party] has made is, while relevant, insufficient … to make this otherwise voluntary confession inadmissible.” (quote not in Kamisar text) The police can lie.
In this case an officer falsely told the defendant that another confessed and had also sympathetically suggested that the victim’s homosexual advances may have started the fight
Police trickery is a mere factor to be included in a court’s assessment of a confession’s involuntariness under a totality of the circumstances analysis
The police can lie a little bit. If there is a lot of lying then that could shock the conscience and be a due process violation
“The fact that the police misrepresented the statements that [the other party] has made is, while relevant, insufficient . . . to make this otherwise voluntary confession inadmissible.”
Miller v. Fenton
796 F.2d 598 (3d Cir.1986)
What kind of trickery may the police employ after a suspect has waived his rights?
No Miranda violation but maybe a due process violation. D signs a waiver and agrees to talk.
In this case the police made the defendant feel guilty up until shock and passing out. The officer falsely told the D that the victim was still alive in a polite and sympathetic tone and that he wanted to help the D unburden his mind.
The court held that the officer’s statements may have stirred up an urge to confess, but they did not produce psychological pressure strong enough to overbear the will of a mature, experienced man, who was suffering no mental illness. The question is whether the detective’s statements were so manipulative or coercive that they deprived the defendant of his ability to make an unconstrained autonomous decision to confess.
The test for voluntariness is not a but-for test, but a question of whether the confession was a product of free choice.
But under the totality of the circumstances in this case, the confession was voluntarily given (2 to 1 decision by the court).
Voluntariness
Colorado v. Connelly
(1986)(Rehnquist, CJ)
Good cop with insane killer case
“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause.”
In this case a mentally ill person out of the blue contacted an officer and confessed to a killing pursuant to hearing “God.” The court held that the confession was not coerced.
This comes down to evidence. Just because the due process clause was not applicable doesn’t mean that this confession comes in without any restrictions. That goes to the rules of evidence and not to the Constitution.
Page 728: A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum and not by the Due Process Clause.
In order for the Due Process Clause to apply you have to have some state action that involves not just the presence of a police officer when the defendant gives his schizophrenia version of the events but some kind of coercive police activity is a necessary predicate to find that the statement/confession is not voluntary within the meaning of the Due Process Clause. It doesn’t mean that the defendant doesn’t have some kind of overall remedy in dealing with the law.
Confession was admissible because there was no police or other governmental wrongdoing.
There are problems with the voluntariness test – it’s vague and it’s totally subject to the facts and circumstances. There’s a huge amount of discretion involved so you are going to see inconsistent results. It’s subject to local pressures.
1. Interrogation and Confession – Fifth Amendment Limitations
Miranda is far from being the complete answer. The Due Process Clause can exist along with or in place of the Miranda type of violation. Keep that in mind as you prepare your outline. You have to recognize how Due Process (coercive police activity) might still be a viable argument that can be there in place of or along with a Miranda violation.
Miranda v. Arizona
(1966)(Warren, CJ)
Finally, the “arrival” of the 5th Amendment to custodial interrogations
What was the Constitutional basis for Court’s decision?
à Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”
The Miranda decision relies more heavily on the Fifth Amendment right against self-incrimination than on the Sixth Amendment right to counsel. The essence of the Court’s holding is that custodial interrogation is inherently coercive (hence compelled), and that because of such inherent coercion, “no statement obtained from a defendant in custody can truly be the product of his free choice.”
The right to have an attorney present is important in the custodial interrogation context because uncounseled questioning is likely to induce confessions in violation of the Fifth Amendment.
Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
In order for Miranda to apply you need:
1. Custodial;
2. Interrogation;
3. By the police or state actor; and
4. D has to know it is the police or state actor.
The Fifth Amendment provides protection at the time of arrest. D is going to get the benefit of the Fifth Amendment at trial. In Chavez the case was never brought to trial; therefore, he could not argue a Fifth Amendment violation.
If you don’t have custody or interrogation, Miranda does not apply. Assuming you have custody and interrogation, a D can waive his right of self-incrimination without an attorney present by a KIV waiver: Knowingly, intelligently and voluntarily. The government has to prove the rights were waived by a preponderance of the evidence. You can waive your rights and reassert them. If the police fail to give one of the rights, the remedy is that the exclusionary rule will apply – no evidence obtained as a result of the interrogation can be used against the defendant.
Sample of the Miranda Rights:
(1) You have the right to remain silent. (2) If you choose to speak, anything you say can and will be used against you in court. (3) You have the right to consult with a lawyer and to have the lawyer with you during any questioning. (4) If you can’t afford a lawyer, one will be appointed to represent you before any questioning if you wish one.
The Miranda rights needs to be given to everyone no matter their education level. There is an implied message that if you don’t want to talk to the police you don’t have to. This takes away the inherent coercion.
Due Process is a constitutional violation (coercion) and that results in a statement that is inadmissible.
Miranda is inherent coercion that is taken away because you are being advised of your rights.
Miranda – “Prophylactic” Rule or Constitutional Rule?:
Michigan v. Tucker
(1974)(Rehnquist, J)
Admissibility of the testimony of a witness whose identity had been learned by questioning defendant without giving him full “prophylactic” (safeguard) Miranda warnings.
In this case a witness’s identity was discovered by questioning the defendant without first providing the Miranda warning to the defendant.
The court held that the Miranda rights were prophylactic rather than constitutional. Thus the fruit of a poisonous tree did not apply.
New York v. Quarles
(1984)(Rehnquist, J)
Public Safety Exception to “Prophylactic” Miranda Warnings
In this case officers arrested a suspected rapist in a grocery store. Officer, without giving the Miranda warnings, asks where the gun was. The D answered “over there”
Evidence gained in violation of Miranda need not be suppressed when the police act for the public safety.
If it was a constitutional safeguard then it can’t be changed. But since it is prophylactic then the courts can modify it.
Objective Standard: The existence of a threat to the public safety is to be determined by an objective, not subjective, standard. That is, the questioning officer’s subjective belief that there is or is not a significant threat to the public safety is irrelevant, and the test is whether a Reasonable Officer in that position would conclude that there was such a threat.
Despite the Public Safety Exception in Miranda, the suspect is always free to bring a due process violation
Oregon v. Elstad
(1985)(O’Connor, J)
“If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the 5th Amendment itself.”
The fact that the police had earlier obtained a statement from defendant in violation of his Miranda rights (when they questioned him in his home) did not bar the admissibility of a subsequent statement (obtained at the police station) when, this time, the police complied with Miranda.
Fruit of the poisonous tree flows from a constitutional violation, not a Miranda violation because Miranda is merely prophylactic.
United States v. Dickerson
(2000)(Rehnquist, CJ)
“Prophylactic” rules and procedural safeguards or constitutionally mandated rules? The constitutionality of 18 USC 3501. Miranda is a constitutional “rule.”
In this case Congress passed a statute saying that in federal prosecutions, any confession that was voluntary under all the circumstances must be admissible against the defendant, even if the Miranda warnings were not given.
The Court overruled the statute holding it unconstitutional. The court said that Congress can enact laws as long as they are consistent with the Constitution. Congress cannot change the scope of constitutional guarantees.
The Court held Miranda Constitutional since:
1. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.
2. States adopted it
3. Protects the constitutional right against coerced self-incrimination.
What does this all mean?
Miranda must be constitutional enough to overrule the Dickerson statute but is not constitutional enough to say that fruit of the poisonous tree flows from a Miranda violation.
Can congress enact a statute that Miranda doesn’t have to be followed?
Miranda protects the Fifth Amendment. At has to be as good as Miranda and 3501. Elstad was not overruled. Miranda must be constitutional enough to say that 3501 is not constitutional but it’s not so constitutional that fruit of the poisonous tree should flow from a Miranda violation. The fruit of the poisonous tree flows from true constitutional violations. Miranda is a constitutional rule, not a constitutional command. It’s a safeguard to protect the Constitution.
The Aftermath of Miranda
Miranda “Custody” and “Interrogation” You’ve got to have both for Miranda to even be applicable.
Court explicitly held that the Miranda warnings must only be given when the police choose to conduct a “custodial interrogation”
CUSTODY
• How did Miranda court define this term?
“...after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Beckwith v. United States
425 U.S. 341 (1976)(Burger, CJ)
Even though the “focus” of the investigation was on the Defendant, he was not in “custody” pursuant to Miranda.
The officers are interested in whether or not the defendant engaged in the tax violations. He is the focus of the investigation. If the police want to ask you a question because they think you are the guy who did it, is that enough to say you are in custody for purposes of Miranda? No.
Page 606: “Although the ‘focus’ of an investigation may indeed have been on petitioner at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding. Miranda specifically defined ‘focus’ for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’”
Custody in a home
Orozco v. Texas
394 U.S. 324 (1969)
Miranda warnings are required prior to custodial interrogation, regardless of location (even in private home)
In this case four officers were questioning defendant in his home at 4 am.
Most courts have concluded that absent special circumstances (such as arresting a suspect at gunpoint or forcibly sub-doing him), police questioning “on the street,” in a public place or in a person’s home or office is not “custodial.”
Nevertheless, the court held in this case that Miranda warnings are required prior to custodial interrogation, regardless of location (even in private home) when it seems to have the “potentiality for compulsion equivalent of police interrogation.”
Objective Custody
Yarborough v. Alvarado
124 S. Ct.2140 (2004) (Kennedy, J)
• “The Miranda custody inquiry is an objective one.”
In this case a 17 ½ year old was taken by his parents to police station for questioning. The court held that D was not in custody. The court stated that the test of custody is an objective test and not a subjective test. The court did not look at the characteristics of the accused such as age, education, intelligence, and prior experience with law enforcement
Objective Reasonable Test: Whether a suspect is or is not in custody as of a particular moment is to be determined by an objective reasonable suspect test: the issue is whether a reasonable person in the suspect’s position would believe that he was (or was not) in custody at that moment.
This “reasonable suspect” standard means that the intent of the interrogating officer to hold the suspect is irrelevant.
The court ruling may have been different if the suspect was 13 years old instead of 17 ½.
NOTE: Just because the questioning was done in a station house doesn’t mean that the suspect was in custody. Also, just because the questioning was not done in a station house doesn’t mean that there was no custody.
Routine questions pursuant to a traffic stop do not rise to the level of Miranda.
Custody by Probation Officer
Minnesota v. Murphy
465 U.S. 420(1984)(White, J)
Meeting with probation officer and subsequent questioning did not constitute custodial interrogation.
This is not the kind of coerciveness the Court saw present in Miranda. Defendant was not restrained and could have left the office even though it would have led to the revocation of probation; therefore, Miranda is not applicable.
Interrogation
• How did Miranda define “interrogation”?
“Questioning initiated by law enforcement officers ….”
If a suspect without being questioned, spontaneously makes an incriminating statement there is no protection from Miranda even if the suspect was in custody.
Rhode Island v. Innis
446 U.S. 291(1980)(Stewart, J)
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”?
In this case the defendant is in the back of a patrol car and overhears the officers talking about how dangerous it would be if kids found the gun. The defendant then confessed to the location of the gun.
He asked for a lawyer which means that Miranda applies. The issue becomes, is this an interrogation? No, not an interrogation under Miranda.
The court said that the functional equivalent of interrogation is:
Page 616: We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions in the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”
What is the definition of “functional equivalent?”
Interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody, e.g. booking questions) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
The Court held that this was not interrogation. The Court cannot say, on that basis, that the officers should have known that it was reasonably likely that Innis would suddenly be moved to make a self-incriminating response to this overheard conversation. Therefore, whatever “subtle compulsion” Innis experienced cannot be equated with “interrogation” bringing Miranda into play.
Factors to determine if the police knew or should have known that their words or action were likely to elicit an incriminating response:
1. Intent of the police may have a bearing;
2. Police practice designed to elicit an incriminating response may have a bearing;
3. Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion may be an important factor.
INTERROGATION
Rhode Island v. Innis
446 U.S. 291(1980)(Stewart, J)
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”?
FACTS: While en route to the central station, the officers initiated a conversation between themselves concerning the missing shotgun. They were concerned for the safety of children at a handicapped school. D then interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. The Captain was informed that D would inform them of the location of the gun. The return trip was no more than a mile. The Captain again advised the D of his Miranda rights. D replied that he understood those rights but that he "wanted to get the gun out of the way because of the kids in the area in the school." D then led the police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road. D was charged with the kidnapping, robbery, and murder of John Mulvaney. D moved to suppress the shotgun and the statements he had made to the police regarding it. The judge refused in that D had been "repeatedly and completely advised of his Miranda rights." The court did not pass on whether the police officers had in fact "interrogated" D but sustained the admissibility of the shotgun and testimony related to its discovery. The Rhode Island Supreme Court set aside D's conviction. It held that the police officers in the vehicle had "interrogated" D without a valid waiver of his right to counsel. The Supreme granted certiorari to address for the first time the meaning of "interrogation."
RULE OF LAW: A conversation between two police officers, which elicits an unsolicited criminal response from a defendant, does not constitute an interrogation if the police had no such intent or knowledge that their conversation would prompt such a response.
Interrogation: Words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.
Functional Equivalent: Words or actions on the part of the police that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.
Corbett: How is a record established on appeal? The record established on appeal comes from the testimony. The defense attorney has to establish the record that these are words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. Why didn’t the defense attorney ask more questions about the technique and training? Certainly that would have been helpful in establishing that these were actions that the police should know that they were reasonably likely to elicit an incriminating response. These were off-hand remarks and there is nothing in the record to establish otherwise.
Arizona v. Mauro
481 U.S. 520 (1987)(Powell, J)
“Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”
A tape recorder was placed in the same room where husband and wife, who were suspects in their child’s murder. This is not an interrogation under Miranda. If anything, a tape recorder would chill the defendants from talking.
Illinois v. Perkins
496 U.S. 292 (1990)(Kennedy, J)
Surreptitious interrogation: “Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.”
An undercover officer is asking questions in a jail cell. The perspective of coerciveness comes from the person being questioned. Here, he thought he was talking to another cellmate. There is not inherent coercion that comes from questions that are posed to you by a guy who happens to be your cellie.
A defense attorney would argue due process if it rose to the level of outrageous conduct but knowledge of the person is not required Arizona v. Fulmonte.
Testimonial Requirement of Fifth Amendment:
• Police must be seeking testimonial or communicative evidence (rather than real or physical evidence) or 5th Amendment does not apply
• What does “testimonial evidence” mean?
If what we have is not testimonial or communicative, the Fifth Amendment does not provide protection and if it is not protected by the Fifth Amendment then, it is not protected under Miranda
Look at Fifth Amendment:
“No Person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ……”
Distinguish this from non-testimonial evidence – physical examples or samples from your body. These are referred to as “exemplars,” which are writing samples, spoken words, etc.
TESTIMONIAL EVIDENCE
Schmerber v. California
384 U.S. 757 (1966)(Brennan, J)
Testimonial evidence? Fifth Amendment not violated if person ordered to produce a blood sample. Incriminating yes, testimonial no.
The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature and that the withdrawal of blood and use of the analysis in question did not involve compulsion to these ends.
The blood-alcohol level may result in your conviction but it is not protected by the Fifth Amendment and hence, not protected by Miranda.
Wade v. United States
388 U.S. 218 (1967)
• Testimonial Evidence?
A person may lawfully be compelled at a lineup to utter words expressed by a suspect if the purpose is to use his voice as an identifying physical characteristic, not to speak his guilt or incriminate himself.
The bank robber said at the bank, “Put the money in the bag” as was later asked to say those words in a lineup. It is an example of his voice, not testimonial evidence (“I” put the money in the bag)
Pennsylvania v. Muniz
496 U.S. 582 (1990)(Brennan, J)
The difficulty in drawing the line between “testimonial communications” and “real or physical” evidence.
At the police station the officer asked Muniz for the date of his 6th birthday, which Muniz could not remember. Then he made Muniz to perform three sobriety tests and the defendant failed at every test. All this was videotaped and Muniz was not read his Miranda rights before he was asked to perform all the tests. Muniz was read his Miranda rights after he refused to take the breathalyzer test.
Answers to booking questions. The four justices said it’s not testimonial communications and the other four said it’s an exception. Miranda would be applicable but it’s an exception. The Court ruled that the question about Muniz's sixth birthday should be suppressed because it can be considered testimonial evidence which should have been obtained after Muniz was read his Miranda rights. The bottom line: Booking questions do not count.
A physical dexterity sobriety test not testimonial – he’s not using his own words to incriminate himself. If you were to say, “I’m so drunk I can’t walk the line.” Then you’ve incriminated yourself.
In this case they were trying to walk the line between content and physical examples but the court said the police went too far. It’s not how he spoke but the content of his words that made it a problem. Asking him his 6th birthday is a custodial interrogation and is Mirandizable because it’s testimonial. This is not a matter of what your voice sounds like or what you look like but what the content is. Basically he was saying. I’m so drunk right now that my brain cannot function, and that is testimonial evidence. This is a line not easily drawn.
Hiibel v. Sixth Judicial District Court of Nevada
124 S. Ct. 2451 (2004)(Kennedy, J)
• Dodging the Bullet: “[E]ven if … [self-identification is] testimonial * * *, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.”
Like 20 other states, Nevada has a "stop and identify" law. The law allows a peace officer to detain any person he encounters "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime," or simply to "ascertain his identity and the suspicious circumstances surrounding his presence abroad." In turn, the law requires the person detained to identify himself, but does not compel the person to answer any other questions put to him by the officer.
Is the answer to your name testimonial? The court dodges the bullet and they don’t say whether it’s testimonial or not.
The Court held that statutes requiring suspects to identify themselves during police investigations did not violate either the Fourth or Fifth Amendments. Under the rubric of Terry v. Ohio, 392 U.S. 1 (1968), the minimal intrusion on a suspect's privacy and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in criminal activity justified asking a suspect to identify himself under the Fourth Amendment.
The Court does concede that there is a possibility that giving your name could be testimonial in certain situations because knowing the suspect's name may just as quickly confirm to the officer that the person is wanted for another, unrelated crime.
MIRANDA WARNINGS
Question: Assume defendant is about to be subjected to custodial interrogation. Exactly what does Miranda require the police to do in those cases where defendant subject to custodial interrogation?
Short Answer: Miranda warnings and waiver before interrogation.
• A sample of Miranda warnings:
You have the right to remain silent. If you choose to speak, anything you say can and will be used against you in court. You have the right to consult with a lawyer and to have the lawyer with you during any questioning. If you can’t afford a lawyer, one will be appointed to represent you before any questioning if you wish one.
For an EXAM: only repeat the Miranda warning if it is relevant to the question.
The giving of the Miranda warning takes away the inherent coercion. Prior to the Miranda warning there is an inherent coercion that comes from the custodial interrogation by the police. After the Miranda warning, I know my rights and the police officer understands my rights and is prepared to honor those rights. I can engage in a voluntary waiver if I chose to do so.
• But what about those situations where the police don’t get it quite right and the Miranda warning are not where they need to be?
Proper Miranda Warnings
California v. Prysock
453 U.S. 355(1981)(per curiam)
“This Court has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant.”
So What Did the Cops Tell D Here? Among other rights:
• ”[Y]ou have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning”; "[you] have the right to have a lawyer appointed to represent you at no cost to yourself."
The defense attorney said that the language suggested that only those accused who can afford an attorney have the right to have one present before answering any questions and implied that if the accused does not go to court, the accused is not entitled to counsel at all.
Duckworth v. Eagan
442 U.S. 195 (1989)(Rehnquist, CJ)
Adequacy of Miranda warnings: Inquiry is simply whether the warnings reasonably “conve(y) to (a suspect) his rights as required by Miranda.”
The issue was you will only be given a lawyer if you go to court. All that Miranda requires is that you provide the warnings required by Miranda, of which there are four. *The bottom line: If you are the defense attorney and the police officer is trying to do something to confuse the defendant you can argue coercion. If they don’t reasonably convey the Miranda right, they are not serving their function.
Relevant portion of advised rights in Duckworth v. Eagan :
“You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.”
Some departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989) (upholding use of sentence by Hammond, Indiana police).
Colorado v. Spring
479 U.S. 564 (1987)(Powell, J)
Does a suspect have the right to be made aware of the subject matter of the questioning? No.
D was arrested on federal weapons charges. ATF agents got D to waive his Miranda rights. They questioned him first on firearms transactions. After he incriminated himself on these, they switched to asking him about a murder in Colorado. This questioning led to a later questioning session in which D confessed to the Colorado murder.
401 U.S. 745 (1971)(White, J)
• No Constitutional Difference Between Informant Testifying at Trial About What He Heard a Defendant Say Versus Recording the Conversation or Carrying a Device That Enables Agents to Listen at a Separate Location.
In this case an informer carried a concealed radio transmitter that transmitted the conversations to the officers.
Since the associate could testify as to the conversation, the recording serves the same function but with increased reliability and accuracy.
NOTE ON THE RIGHT TO COUNSEL: The use of a bugged or unbugged informer against a suspect who has already been indicted may violate the suspect’s Sixth Amendment right to counsel. Once a suspect has been indicted and has counsel, it is a violation of that right to counsel for the secret agent to “deliberately elicit” incriminating statements form the suspect in the absence of counsel, and to pass these on to the prosecution for the use in the case involving the indictment.
INTERROGATIONS AND CONFESSIONS
Three Major Constitution Limitations:
1. Due Process clause of the 14th Amendment – Passed following the Civil War, provides in part: “… nor shall any State deprive any person of life, liberty, or property, without due process of law;”
2. 5th Amendment. Privilege Against Compelled Self-Incrimination: “No person…..shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”
3. 6th Amendment. Right to Counsel: “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.”
14TH AMENDMENT DUE PROCESS CLAUSE
Difficulty in Applying Voluntariness Test
• No bright line
• Examples: Mincey/Fulminante/Frazier v. Cupp/Miller v. Fenton/Colorado v. Connelly
Post Miranda always involves some kind of excessive police behavior.
1. VOLUNTARY: The confession must have been voluntary and not the product of (1) actual coercion (2) by the police
2. Page 554, Justice Frankfurter commented: “Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency.”
Corbett: The police have to obey the law while enforcing the law.
3. The voluntariness test can be made in conjunction with or alternatively to Miranda test. Footnote d on page 558 says that there are situations in which the due process clause is applicable when Miranda is not applicable:
Police question suspect not in custody.
When police question a suspect who waives his rights and agrees to talk, but denies any involvement in the crime
Moreover, the distinction between an involuntary confession and one obtained only in violation of Miranda is important in a number of procedural contexts:
i. E.g., use of the confession for impeachment purposes.
4. Voluntariness Test: What do we look to see if there is a due process violation? There is no bright line rule. There needs to be actual coercion (opposed to inherent coercion specified in Miranda Test) by the police. We look to the totality of the circumstances. No single factor is controlling. There are two basic categories of factors (not requirements):
a. Characteristics of the accused
ii. Age
iii. Experience with the criminal justice system
iv. Intelligence
v. Emotional and mental stability
vi. Physical condition and gender.
b. Circumstances of the interrogation
vii. Taking off the defendant’s clothes and keeping him naked for several hours
viii. Depriving the accused of his basic needs: food, water, sleep, air conditioning, heat, etc.
ix. Was the suspect advised of his rights
5. Problem with the Voluntariness Test
a. No bright line – totality of the circumstances
b. Test is vague
c. Test is subject to facts and circumstances
Test is subject to local pressure
Little uniformity in how the test is applied.
Was the suspect advised of his rights? It is only “a” factor.
6. Interrogation and Confessions – Due Process Limitations – Applying the Voluntariness Test:
Mincey v. Arizona
(1978)(Stewart, J)
Problems with the judicial subjective element of the “ voluntariness” analysis in a local court: “The more remote the court, the easier it is to consider the case in terms of a hypothetical defendant accused of crime, instead of a particular man whose guilt has been established.”
Wounded from a hospital raid and in the hospital (almost at the point of a coma) was questioned by a police officer. The Supreme Court reversed the lower AZ courts reasoning that “Mincey made it clear that he did not want to answer the detective’s questions. Weakened by pain and shock, isolated from family, friends and legal counsel, and barely conscious – Mincey’s will was simply overborne.”
The court held a Miranda violation and a due process violation. Note: The defense argued due process violation instead of the Miranda violation because the defense didn’t want it to be used in impeachment process.
This is a classic example of why the Due Process Clause argument is alive and well.
Arizona v. Fulminante
(1991)(White, J)
Confession invalidated as not voluntary due to offering (by paid government informant) to protect a prisoner from physical harm at the hands of other inmates if prisoner told him the truth about the murder in question.
In this case an informant who pretended to be an inmate told the D in prison that if he confesses to the killing he will protect the defendant from being killed by other prisoners.
The court held that the confession was coerced because defendant was in harms way for being a child killer and the informant knew that the defendant was receiving rough treatment from the other prisoners.
Note: The Constitution applies even though the person did not know the inmate was a police officer. Miranda was not necessary however. For Miranda to apply the person needs to know that the person he is talking to is an officer.
The Supreme Court applied the totality of the circumstances test.
Police Trickery
Frazier v. Cupp
(1969)
“The fact that the police misrepresented the statements that [the other party] has made is, while relevant, insufficient … to make this otherwise voluntary confession inadmissible.” (quote not in Kamisar text) The police can lie.
In this case an officer falsely told the defendant that another confessed and had also sympathetically suggested that the victim’s homosexual advances may have started the fight
Police trickery is a mere factor to be included in a court’s assessment of a confession’s involuntariness under a totality of the circumstances analysis
The police can lie a little bit. If there is a lot of lying then that could shock the conscience and be a due process violation
“The fact that the police misrepresented the statements that [the other party] has made is, while relevant, insufficient . . . to make this otherwise voluntary confession inadmissible.”
Miller v. Fenton
796 F.2d 598 (3d Cir.1986)
What kind of trickery may the police employ after a suspect has waived his rights?
No Miranda violation but maybe a due process violation. D signs a waiver and agrees to talk.
In this case the police made the defendant feel guilty up until shock and passing out. The officer falsely told the D that the victim was still alive in a polite and sympathetic tone and that he wanted to help the D unburden his mind.
The court held that the officer’s statements may have stirred up an urge to confess, but they did not produce psychological pressure strong enough to overbear the will of a mature, experienced man, who was suffering no mental illness. The question is whether the detective’s statements were so manipulative or coercive that they deprived the defendant of his ability to make an unconstrained autonomous decision to confess.
The test for voluntariness is not a but-for test, but a question of whether the confession was a product of free choice.
But under the totality of the circumstances in this case, the confession was voluntarily given (2 to 1 decision by the court).
Voluntariness
Colorado v. Connelly
(1986)(Rehnquist, CJ)
Good cop with insane killer case
“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause.”
In this case a mentally ill person out of the blue contacted an officer and confessed to a killing pursuant to hearing “God.” The court held that the confession was not coerced.
This comes down to evidence. Just because the due process clause was not applicable doesn’t mean that this confession comes in without any restrictions. That goes to the rules of evidence and not to the Constitution.
Page 728: A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum and not by the Due Process Clause.
In order for the Due Process Clause to apply you have to have some state action that involves not just the presence of a police officer when the defendant gives his schizophrenia version of the events but some kind of coercive police activity is a necessary predicate to find that the statement/confession is not voluntary within the meaning of the Due Process Clause. It doesn’t mean that the defendant doesn’t have some kind of overall remedy in dealing with the law.
Confession was admissible because there was no police or other governmental wrongdoing.
There are problems with the voluntariness test – it’s vague and it’s totally subject to the facts and circumstances. There’s a huge amount of discretion involved so you are going to see inconsistent results. It’s subject to local pressures.
1. Interrogation and Confession – Fifth Amendment Limitations
Miranda is far from being the complete answer. The Due Process Clause can exist along with or in place of the Miranda type of violation. Keep that in mind as you prepare your outline. You have to recognize how Due Process (coercive police activity) might still be a viable argument that can be there in place of or along with a Miranda violation.
Miranda v. Arizona
(1966)(Warren, CJ)
Finally, the “arrival” of the 5th Amendment to custodial interrogations
What was the Constitutional basis for Court’s decision?
à Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;”
The Miranda decision relies more heavily on the Fifth Amendment right against self-incrimination than on the Sixth Amendment right to counsel. The essence of the Court’s holding is that custodial interrogation is inherently coercive (hence compelled), and that because of such inherent coercion, “no statement obtained from a defendant in custody can truly be the product of his free choice.”
The right to have an attorney present is important in the custodial interrogation context because uncounseled questioning is likely to induce confessions in violation of the Fifth Amendment.
Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
In order for Miranda to apply you need:
1. Custodial;
2. Interrogation;
3. By the police or state actor; and
4. D has to know it is the police or state actor.
The Fifth Amendment provides protection at the time of arrest. D is going to get the benefit of the Fifth Amendment at trial. In Chavez the case was never brought to trial; therefore, he could not argue a Fifth Amendment violation.
If you don’t have custody or interrogation, Miranda does not apply. Assuming you have custody and interrogation, a D can waive his right of self-incrimination without an attorney present by a KIV waiver: Knowingly, intelligently and voluntarily. The government has to prove the rights were waived by a preponderance of the evidence. You can waive your rights and reassert them. If the police fail to give one of the rights, the remedy is that the exclusionary rule will apply – no evidence obtained as a result of the interrogation can be used against the defendant.
Sample of the Miranda Rights:
(1) You have the right to remain silent. (2) If you choose to speak, anything you say can and will be used against you in court. (3) You have the right to consult with a lawyer and to have the lawyer with you during any questioning. (4) If you can’t afford a lawyer, one will be appointed to represent you before any questioning if you wish one.
The Miranda rights needs to be given to everyone no matter their education level. There is an implied message that if you don’t want to talk to the police you don’t have to. This takes away the inherent coercion.
Due Process is a constitutional violation (coercion) and that results in a statement that is inadmissible.
Miranda is inherent coercion that is taken away because you are being advised of your rights.
Miranda – “Prophylactic” Rule or Constitutional Rule?:
Michigan v. Tucker
(1974)(Rehnquist, J)
Admissibility of the testimony of a witness whose identity had been learned by questioning defendant without giving him full “prophylactic” (safeguard) Miranda warnings.
In this case a witness’s identity was discovered by questioning the defendant without first providing the Miranda warning to the defendant.
The court held that the Miranda rights were prophylactic rather than constitutional. Thus the fruit of a poisonous tree did not apply.
New York v. Quarles
(1984)(Rehnquist, J)
Public Safety Exception to “Prophylactic” Miranda Warnings
In this case officers arrested a suspected rapist in a grocery store. Officer, without giving the Miranda warnings, asks where the gun was. The D answered “over there”
Evidence gained in violation of Miranda need not be suppressed when the police act for the public safety.
If it was a constitutional safeguard then it can’t be changed. But since it is prophylactic then the courts can modify it.
Objective Standard: The existence of a threat to the public safety is to be determined by an objective, not subjective, standard. That is, the questioning officer’s subjective belief that there is or is not a significant threat to the public safety is irrelevant, and the test is whether a Reasonable Officer in that position would conclude that there was such a threat.
Despite the Public Safety Exception in Miranda, the suspect is always free to bring a due process violation
Oregon v. Elstad
(1985)(O’Connor, J)
“If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the 5th Amendment itself.”
The fact that the police had earlier obtained a statement from defendant in violation of his Miranda rights (when they questioned him in his home) did not bar the admissibility of a subsequent statement (obtained at the police station) when, this time, the police complied with Miranda.
Fruit of the poisonous tree flows from a constitutional violation, not a Miranda violation because Miranda is merely prophylactic.
United States v. Dickerson
(2000)(Rehnquist, CJ)
“Prophylactic” rules and procedural safeguards or constitutionally mandated rules? The constitutionality of 18 USC 3501. Miranda is a constitutional “rule.”
In this case Congress passed a statute saying that in federal prosecutions, any confession that was voluntary under all the circumstances must be admissible against the defendant, even if the Miranda warnings were not given.
The Court overruled the statute holding it unconstitutional. The court said that Congress can enact laws as long as they are consistent with the Constitution. Congress cannot change the scope of constitutional guarantees.
The Court held Miranda Constitutional since:
1. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.
2. States adopted it
3. Protects the constitutional right against coerced self-incrimination.
What does this all mean?
Miranda must be constitutional enough to overrule the Dickerson statute but is not constitutional enough to say that fruit of the poisonous tree flows from a Miranda violation.
Can congress enact a statute that Miranda doesn’t have to be followed?
Miranda protects the Fifth Amendment. At has to be as good as Miranda and 3501. Elstad was not overruled. Miranda must be constitutional enough to say that 3501 is not constitutional but it’s not so constitutional that fruit of the poisonous tree should flow from a Miranda violation. The fruit of the poisonous tree flows from true constitutional violations. Miranda is a constitutional rule, not a constitutional command. It’s a safeguard to protect the Constitution.
The Aftermath of Miranda
Miranda “Custody” and “Interrogation” You’ve got to have both for Miranda to even be applicable.
Court explicitly held that the Miranda warnings must only be given when the police choose to conduct a “custodial interrogation”
CUSTODY
• How did Miranda court define this term?
“...after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Beckwith v. United States
425 U.S. 341 (1976)(Burger, CJ)
Even though the “focus” of the investigation was on the Defendant, he was not in “custody” pursuant to Miranda.
The officers are interested in whether or not the defendant engaged in the tax violations. He is the focus of the investigation. If the police want to ask you a question because they think you are the guy who did it, is that enough to say you are in custody for purposes of Miranda? No.
Page 606: “Although the ‘focus’ of an investigation may indeed have been on petitioner at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding. Miranda specifically defined ‘focus’ for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’”
Custody in a home
Orozco v. Texas
394 U.S. 324 (1969)
Miranda warnings are required prior to custodial interrogation, regardless of location (even in private home)
In this case four officers were questioning defendant in his home at 4 am.
Most courts have concluded that absent special circumstances (such as arresting a suspect at gunpoint or forcibly sub-doing him), police questioning “on the street,” in a public place or in a person’s home or office is not “custodial.”
Nevertheless, the court held in this case that Miranda warnings are required prior to custodial interrogation, regardless of location (even in private home) when it seems to have the “potentiality for compulsion equivalent of police interrogation.”
Objective Custody
Yarborough v. Alvarado
124 S. Ct.2140 (2004) (Kennedy, J)
• “The Miranda custody inquiry is an objective one.”
In this case a 17 ½ year old was taken by his parents to police station for questioning. The court held that D was not in custody. The court stated that the test of custody is an objective test and not a subjective test. The court did not look at the characteristics of the accused such as age, education, intelligence, and prior experience with law enforcement
Objective Reasonable Test: Whether a suspect is or is not in custody as of a particular moment is to be determined by an objective reasonable suspect test: the issue is whether a reasonable person in the suspect’s position would believe that he was (or was not) in custody at that moment.
This “reasonable suspect” standard means that the intent of the interrogating officer to hold the suspect is irrelevant.
The court ruling may have been different if the suspect was 13 years old instead of 17 ½.
NOTE: Just because the questioning was done in a station house doesn’t mean that the suspect was in custody. Also, just because the questioning was not done in a station house doesn’t mean that there was no custody.
Routine questions pursuant to a traffic stop do not rise to the level of Miranda.
Custody by Probation Officer
Minnesota v. Murphy
465 U.S. 420(1984)(White, J)
Meeting with probation officer and subsequent questioning did not constitute custodial interrogation.
This is not the kind of coerciveness the Court saw present in Miranda. Defendant was not restrained and could have left the office even though it would have led to the revocation of probation; therefore, Miranda is not applicable.
Interrogation
• How did Miranda define “interrogation”?
“Questioning initiated by law enforcement officers ….”
If a suspect without being questioned, spontaneously makes an incriminating statement there is no protection from Miranda even if the suspect was in custody.
Rhode Island v. Innis
446 U.S. 291(1980)(Stewart, J)
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”?
In this case the defendant is in the back of a patrol car and overhears the officers talking about how dangerous it would be if kids found the gun. The defendant then confessed to the location of the gun.
He asked for a lawyer which means that Miranda applies. The issue becomes, is this an interrogation? No, not an interrogation under Miranda.
The court said that the functional equivalent of interrogation is:
Page 616: We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions in the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”
What is the definition of “functional equivalent?”
Interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody, e.g. booking questions) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
The Court held that this was not interrogation. The Court cannot say, on that basis, that the officers should have known that it was reasonably likely that Innis would suddenly be moved to make a self-incriminating response to this overheard conversation. Therefore, whatever “subtle compulsion” Innis experienced cannot be equated with “interrogation” bringing Miranda into play.
Factors to determine if the police knew or should have known that their words or action were likely to elicit an incriminating response:
1. Intent of the police may have a bearing;
2. Police practice designed to elicit an incriminating response may have a bearing;
3. Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion may be an important factor.
INTERROGATION
Rhode Island v. Innis
446 U.S. 291(1980)(Stewart, J)
What constitutes “interrogation” within the meaning of Miranda? “Express questioning” or its “functional equivalent”?
FACTS: While en route to the central station, the officers initiated a conversation between themselves concerning the missing shotgun. They were concerned for the safety of children at a handicapped school. D then interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. The Captain was informed that D would inform them of the location of the gun. The return trip was no more than a mile. The Captain again advised the D of his Miranda rights. D replied that he understood those rights but that he "wanted to get the gun out of the way because of the kids in the area in the school." D then led the police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road. D was charged with the kidnapping, robbery, and murder of John Mulvaney. D moved to suppress the shotgun and the statements he had made to the police regarding it. The judge refused in that D had been "repeatedly and completely advised of his Miranda rights." The court did not pass on whether the police officers had in fact "interrogated" D but sustained the admissibility of the shotgun and testimony related to its discovery. The Rhode Island Supreme Court set aside D's conviction. It held that the police officers in the vehicle had "interrogated" D without a valid waiver of his right to counsel. The Supreme granted certiorari to address for the first time the meaning of "interrogation."
RULE OF LAW: A conversation between two police officers, which elicits an unsolicited criminal response from a defendant, does not constitute an interrogation if the police had no such intent or knowledge that their conversation would prompt such a response.
Interrogation: Words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response.
Functional Equivalent: Words or actions on the part of the police that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.
Corbett: How is a record established on appeal? The record established on appeal comes from the testimony. The defense attorney has to establish the record that these are words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. Why didn’t the defense attorney ask more questions about the technique and training? Certainly that would have been helpful in establishing that these were actions that the police should know that they were reasonably likely to elicit an incriminating response. These were off-hand remarks and there is nothing in the record to establish otherwise.
Arizona v. Mauro
481 U.S. 520 (1987)(Powell, J)
“Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”
A tape recorder was placed in the same room where husband and wife, who were suspects in their child’s murder. This is not an interrogation under Miranda. If anything, a tape recorder would chill the defendants from talking.
Illinois v. Perkins
496 U.S. 292 (1990)(Kennedy, J)
Surreptitious interrogation: “Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.”
An undercover officer is asking questions in a jail cell. The perspective of coerciveness comes from the person being questioned. Here, he thought he was talking to another cellmate. There is not inherent coercion that comes from questions that are posed to you by a guy who happens to be your cellie.
A defense attorney would argue due process if it rose to the level of outrageous conduct but knowledge of the person is not required Arizona v. Fulmonte.
Testimonial Requirement of Fifth Amendment:
• Police must be seeking testimonial or communicative evidence (rather than real or physical evidence) or 5th Amendment does not apply
• What does “testimonial evidence” mean?
If what we have is not testimonial or communicative, the Fifth Amendment does not provide protection and if it is not protected by the Fifth Amendment then, it is not protected under Miranda
Look at Fifth Amendment:
“No Person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ……”
Distinguish this from non-testimonial evidence – physical examples or samples from your body. These are referred to as “exemplars,” which are writing samples, spoken words, etc.
TESTIMONIAL EVIDENCE
Schmerber v. California
384 U.S. 757 (1966)(Brennan, J)
Testimonial evidence? Fifth Amendment not violated if person ordered to produce a blood sample. Incriminating yes, testimonial no.
The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature and that the withdrawal of blood and use of the analysis in question did not involve compulsion to these ends.
The blood-alcohol level may result in your conviction but it is not protected by the Fifth Amendment and hence, not protected by Miranda.
Wade v. United States
388 U.S. 218 (1967)
• Testimonial Evidence?
A person may lawfully be compelled at a lineup to utter words expressed by a suspect if the purpose is to use his voice as an identifying physical characteristic, not to speak his guilt or incriminate himself.
The bank robber said at the bank, “Put the money in the bag” as was later asked to say those words in a lineup. It is an example of his voice, not testimonial evidence (“I” put the money in the bag)
Pennsylvania v. Muniz
496 U.S. 582 (1990)(Brennan, J)
The difficulty in drawing the line between “testimonial communications” and “real or physical” evidence.
At the police station the officer asked Muniz for the date of his 6th birthday, which Muniz could not remember. Then he made Muniz to perform three sobriety tests and the defendant failed at every test. All this was videotaped and Muniz was not read his Miranda rights before he was asked to perform all the tests. Muniz was read his Miranda rights after he refused to take the breathalyzer test.
Answers to booking questions. The four justices said it’s not testimonial communications and the other four said it’s an exception. Miranda would be applicable but it’s an exception. The Court ruled that the question about Muniz's sixth birthday should be suppressed because it can be considered testimonial evidence which should have been obtained after Muniz was read his Miranda rights. The bottom line: Booking questions do not count.
A physical dexterity sobriety test not testimonial – he’s not using his own words to incriminate himself. If you were to say, “I’m so drunk I can’t walk the line.” Then you’ve incriminated yourself.
In this case they were trying to walk the line between content and physical examples but the court said the police went too far. It’s not how he spoke but the content of his words that made it a problem. Asking him his 6th birthday is a custodial interrogation and is Mirandizable because it’s testimonial. This is not a matter of what your voice sounds like or what you look like but what the content is. Basically he was saying. I’m so drunk right now that my brain cannot function, and that is testimonial evidence. This is a line not easily drawn.
Hiibel v. Sixth Judicial District Court of Nevada
124 S. Ct. 2451 (2004)(Kennedy, J)
• Dodging the Bullet: “[E]ven if … [self-identification is] testimonial * * *, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.”
Like 20 other states, Nevada has a "stop and identify" law. The law allows a peace officer to detain any person he encounters "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime," or simply to "ascertain his identity and the suspicious circumstances surrounding his presence abroad." In turn, the law requires the person detained to identify himself, but does not compel the person to answer any other questions put to him by the officer.
Is the answer to your name testimonial? The court dodges the bullet and they don’t say whether it’s testimonial or not.
The Court held that statutes requiring suspects to identify themselves during police investigations did not violate either the Fourth or Fifth Amendments. Under the rubric of Terry v. Ohio, 392 U.S. 1 (1968), the minimal intrusion on a suspect's privacy and the legitimate need of law enforcement officers to quickly dispel suspicion that an individual is engaged in criminal activity justified asking a suspect to identify himself under the Fourth Amendment.
The Court does concede that there is a possibility that giving your name could be testimonial in certain situations because knowing the suspect's name may just as quickly confirm to the officer that the person is wanted for another, unrelated crime.
MIRANDA WARNINGS
Question: Assume defendant is about to be subjected to custodial interrogation. Exactly what does Miranda require the police to do in those cases where defendant subject to custodial interrogation?
Short Answer: Miranda warnings and waiver before interrogation.
• A sample of Miranda warnings:
You have the right to remain silent. If you choose to speak, anything you say can and will be used against you in court. You have the right to consult with a lawyer and to have the lawyer with you during any questioning. If you can’t afford a lawyer, one will be appointed to represent you before any questioning if you wish one.
For an EXAM: only repeat the Miranda warning if it is relevant to the question.
The giving of the Miranda warning takes away the inherent coercion. Prior to the Miranda warning there is an inherent coercion that comes from the custodial interrogation by the police. After the Miranda warning, I know my rights and the police officer understands my rights and is prepared to honor those rights. I can engage in a voluntary waiver if I chose to do so.
• But what about those situations where the police don’t get it quite right and the Miranda warning are not where they need to be?
Proper Miranda Warnings
California v. Prysock
453 U.S. 355(1981)(per curiam)
“This Court has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant.”
So What Did the Cops Tell D Here? Among other rights:
• ”[Y]ou have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning”; "[you] have the right to have a lawyer appointed to represent you at no cost to yourself."
The defense attorney said that the language suggested that only those accused who can afford an attorney have the right to have one present before answering any questions and implied that if the accused does not go to court, the accused is not entitled to counsel at all.
Duckworth v. Eagan
442 U.S. 195 (1989)(Rehnquist, CJ)
Adequacy of Miranda warnings: Inquiry is simply whether the warnings reasonably “conve(y) to (a suspect) his rights as required by Miranda.”
The issue was you will only be given a lawyer if you go to court. All that Miranda requires is that you provide the warnings required by Miranda, of which there are four. *The bottom line: If you are the defense attorney and the police officer is trying to do something to confuse the defendant you can argue coercion. If they don’t reasonably convey the Miranda right, they are not serving their function.
Relevant portion of advised rights in Duckworth v. Eagan :
“You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.”
Some departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989) (upholding use of sentence by Hammond, Indiana police).
Colorado v. Spring
479 U.S. 564 (1987)(Powell, J)
Does a suspect have the right to be made aware of the subject matter of the questioning? No.
D was arrested on federal weapons charges. ATF agents got D to waive his Miranda rights. They questioned him first on firearms transactions. After he incriminated himself on these, they switched to asking him about a murder in Colorado. This questioning led to a later questioning session in which D confessed to the Colorado murder.
The Supreme Court held that D’s waiver was not nullified by the fact that he mistakenly believed that the interrogation would focus only on the federal firearms charges, not the Colorado murder charges. The majority noted that the police did not make any affirmative misstatement about their intent; they merely neglected to tell D that the Colorado murder charges would be part of the interrogation. “Mere silence” by officials as to the subject of an interrogation is not “trickery” sufficient to invalidate a suspect’s waiver of Miranda rights. All that is needed for a valid waiver of Miranda rights is that the suspect understand the nature of his constitutional right – his right to remain silent – not all information that would be “useful” to him in deciding whether relying on the right would be wise.
Proper Miranda Warnings & Waiver of Miranda Rights
Moran v. Burbine
475 U.S. 412 (1986)
• Do the police have to tell a suspect that a lawyer is trying to contact him?
• What does it mean to knowingly, intelligently and voluntarily waive one’s Miranda rights? If he knows that an attorney
D was arrested by the police in connection with a local burglary. D's sister called the Public Defender's Office at 7:45 P.M. to obtain counsel for D on the breaking and entering charge. She unsuccessfully tried to reach the attorney representing D on another unrelated charge, but reached another public defender. At 8:15 P.M., the public defender called the Cranston police and asked for the detectives. She stated that D was represented by an attorney who wasn't available and said that she would act as D's attorney if he was placed in a lineup or questioned. The police said that D would not be questioned that night. D was not informed of this conversation and that his sister had retained a lawyer for him. An hour later, police began to interrogate D in a series of interviews. Before each session, D was informed of his Miranda rights, and on three occasions, he signed written waivers, indicating that he did not want an attorney called or appointed to him. D had access to but did not use the phone in the interrogation room. D signed three statements confessing to the murder. The trial court denied D's motion to suppress the statements, and D was found guilty of murder. The Rhode Island Supreme Court affirmed. On federal habeas corpus, the 1st Circuit reversed, holding that the police conduct had prevented D from knowingly and intelligently waiving his rights. The Supreme Court granted certiorari.
The issue is, if he knows that an attorney is trying to represent him, perhaps it would have affected his decision to confess.
The police are not required to inform a suspect that an attorney has been retained for him. All they police must do is inform a suspect of the four points in the Miranda rights. It does not impact on whether or not he knowingly, intelligently and voluntarily waived his rights. The Court applied the Johnson v. Zerbst standard.
Johnson v. Zerbst standard page 662:
• “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with the full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.”
It’s the government’s burden to prove by a preponderance of the evidence that a person knowingly, intelligently, and voluntarily waives his rights using the Johnson v. Zerbst standard. Just because the information would have been helpful doesn’t mean that it is required under Miranda.
If it gets bad enough, you can claim a violation of due process.
Waiver of Miranda Rights
Corbett: This could be an EXAM question.
North Carolina v. Butler
441 U.S. 369(1979)(Stewart, J)
Implied Waiver: What must government demonstrate to establish a valid waiver?
The suspect in this case refused to sign a waiver and said nothing when advised of his right to a lawyer’s assistance.
The Supreme Court held that an express waiver of Miranda rights is not necessary, and that a waiver can in some circumstances be inferred from the actions and words of the person interrogated. The case was therefore remanded to the state level to determine whether such a waiver could be inferred here.
Although Butler demonstrates that a signed waiver is not a prerequisite, judges have been reluctant to find a valid waiver where the suspect’s refusal to sign a waiver is coupled with any other indication of unwillingness.
Invoking Miranda Rights
Fare v. Michael C.
442 U.S. 707(1979)(Blackmun, J)
Request to see probation officer by a juvenile – under the totality of circumstances – not the equivalent of asking for a lawyer.
A suspect’s request to see a non-lawyer will generally not be enough to negate his waiver of Miranda rights. In this case a juvenile suspect requested to see his probation officer. The police refused and the suspect then agreed to talk to them.
The Court held that this request was not the equivalent of a request for a lawyer (which would have required interrogation to cease automatically). Instead, the request for the probation officer was merely one factor to be considered in determining whether D had waived his Miranda rights, and under the totality of the circumstances, D could be found to have waived those rights.
Rationale: A probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights to an accused undergoing custodial interrogation that an attorney can offer. Although D was a juvenile there was nothing to indicate that he was too unintelligent or immature to understand the rights he was waiving.
QUERY: How assertive does a suspect need to be in asserting his right to counsel?
Davis v. United States
512 US 452(1994)(O’Connor, J)
How direct, assertive and unambiguous must a suspect be in order to invoke the right to counsel?
Suspect must “actually” request an attorney
D, while in custody, is interrogated about a murder in which he is a suspect. About an hour and a half into the interview, D says, “Maybe I should talk to a lawyer.” The agents ask him to clarify whether he wants a lawyer or not. He then says, “No, I’m not asking for a lawyer.” The interrogation continues, and D makes incriminating statements. Finally he asks unequivocally for counsel, and questioning ceases. D argues that once he made his ambiguous statement (“Maybe I should talk to a lawyer”), questioning should have automatically ceased.
Held for the prosecution. The Edwards obligation to stop questioning once the suspect asks for a lawyer applies only where the suspect articulates his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to request an attorney. If the statement does not meet this level of clarity, the officers need not stop questioning the suspect. In fact, they need not even ask clarifying questions.
The Test: Defendant must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.
Connecticut v. Barrett
479 U.S. 523(1987)(Rehnquist, CJ)
Qualified waivers: Is waiver regarding oral statement effective when suspect refuses to make written statement without counsel present?
Respondent, while in custody on suspicion of sexual assault, was three times advised by the police of his Miranda rights. On each occasion, after signing and dating an acknowledgment that he had been given those rights, respondent indicated to the police that he would not make a written statement, but that he was willing to talk about the incident that led to his arrest. On the second and third such occasions, he added that he would not make a written statement outside the presence of counsel, and then orally admitted his involvement in the sexual assault. One of the police officers reduced to writing his recollection of respondent's last such statement, and the confession was introduced into evidence at respondent's trial. The trial court refused to suppress the confession, finding that respondent had fully understood the Miranda warnings and had voluntarily waived his right to counsel. Respondent's conviction of sexual assault, inter alia, was reversed by the Connecticut Supreme Court which held that his expressed desire for counsel before making a written statement constituted an invocation of his right to counsel for all purposes, that he had not waived that right by initiating further discussion with the police, and that therefore the incriminating statement was improperly admitted into evidence under Edwards v. Arizona, 451 U.S. 477.
Held: The Constitution did not require suppression of respondent's incriminating statement.(a) Respondent's statements to the police made clear his willingness to talk about the sexual assault, and, there being no evidence that he was "threatened, tricked, or cajoled" into speaking to the police, the trial court properly found that his decision to do so constituted a voluntary waiver of his right to counsel. Although the Miranda rules were designed to protect defendants from being compelled by the government to make statements, they also give defendants the right to choose between speech and silence.(b) Respondent's invocation of his right to counsel was limited by its terms to the making of written statements, and did not prohibit all further discussion with police. Requests for counsel must be given broad, all-inclusive effect only when the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, respondent clearly and unequivocally expressed his willingness to speak to police about the sexual assault. (c) The distinction drawn by respondent between oral and written statements did not indicate an understanding so incomplete as to render his limited invocation of the right to counsel effective for all purposes. To so hold would contravene his testimony, and the trial court's finding, that he fully understood his Miranda warnings, including the warning that anything he said to police could be used against him. A defendant's ignorance of the full consequences of his decisions does not vitiate their voluntariness.
Corbett: Oral statements are just as useable as written statements.
Effect of Invoking Right to Silence
Michigan v. Mosley
423 U.S. 96(1975)(Stewart, J)
The Miranda right to silence does not mean that the police may never resume interrogation after a suspect asserts his right to silence nor does it mean that they only need cease questioning momentarily.
Under the totality of circumstances, was the right to cutoff questioning scrupulously honored?
A second interrogation after Miranda has been invoked is not a violation where the suspect's "right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent."
Issue: The issue is whether or not the police failed to honor a decision to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down the suspect’s resistance and make him change his mind.
Kamisar at 646: “Three factors seem to be minimal requirements for the resumption of questioning once a suspect asserts his right to remain silent:
1. immediately ceasing the interrogation;
2. suspending questioning entirely for a significant period; and
3. giving a fresh set of Miranda warnings at the outset of the second interrogation.”
Corbett: The law is dependent on the cases and the totality of circumstances.
Effect of Invoking Right to Counsel
Edwards v. Arizona
451 U.S. 477(1981)(White, J)
Once a suspect has invoked his right to counsel he may not be “subject[ed] to further interrogation [until] counsel has been made available to him unless [he] himself initiates further communication, exchanges or conversations with police.”
The attorney has to do essentially the same thing – be present and invite the guy back. Until that happens, the police officer cannot ask any questions.
The Court ruled that Miranda had been violated when police reinitiated questioning after the suspect had requested counsel. Questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police–initiated custodial interrogation even if he has been advised of this rights. We further hold that an accused . . . , having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” The Edwards rule bars police–initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested.
However, the suspect must specifically ask for counsel; if he requests the assistance of someone else he thinks may be helpful to him, that is not a valid assertion of Miranda rights. Moreover, the rigid Edwards rule is not applicable to other aspects of the warnings. That is, if the suspect asserts his right to remain silent, the questioning must cease, but officers are not precluded from subsequently initiating a new round of interrogation, provided only that they again give the Miranda warnings.
Invoking Right to Attorney -Resumption of Interrogation
Oregon v. Bradshaw
462 U.S. 1039(1983)(Rehnquist, J)(four-Justice plurality opinion)
“Initiating” further communication under Edwards - comment or inquiry that can be “fairly said to represent a desire … to open up a … generalized discussion relating directly or indirectly to the investigation.”
Bradshaw's question here, "Well, what is going to happen to me now?", "initiated" conversation with the police "in the ordinary dictionary sense of the word." It "evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship." Thus, a suspect detained during an investigation may, after invoking his right to have counsel present during an interrogation, may ask for a drink of water or to use the telephone without retreating from his prior request for counsel. He may not, however, ask more generalized and open-ended questions.
Accordingly, the Court held that the Edwards rule had not been violated. The police did not otherwise make any threats, promises, or inducements to Bradshaw in order to persuade him to talk; in fact they confirmed that he had the right to counsel before resuming their questioning. Under these circumstances, Bradshaw had voluntarily waived his right to counsel during interrogation.
Once a suspect invokes his rights under Miranda v. Arizona, the police may not initiate questioning until the suspect has an attorney present or voluntarily approaches the police with further questions beyond a "necessary inquiry arising out of the incidents of the custodial relationship."
Effect of Invoking Right to an Attorney
Arizona v. Roberson
486 U.S. 675(1988)(Stevens, J)
Extending Edwards to bar police-initiated interrogation regarding offenses unrelated to the subject of the original interrogation.
The bright line Edwards rule applies even where the police subsequently wish to question the suspect about a different crime that the one they were questioning him about when he first requested the lawyer
Effect of Invoking Right to an Attorney
Minnick v. Mississippi
498 U.S. 146(1990)(Kennedy, J)
Once suspect in custody invokes right to counsel, police must not only permit the suspect to consult with an attorney but they may not re-initiate questioning unless counsel is present.
A police officer gives Miranda warning so he can interrogate. He does not have to give Miranda warnings when he arrests somebody. Miranda warnings are for a custodial interrogation.
Limitations on and Exceptions to Miranda Rule
Miranda Exceptions – Public Safety Limitation:
New York v. Quarles
467 U.S. 649(1984)(Rehnquist, J)
“Under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.”
FACTS: A woman told officers that she was raped, that her assailant went into a supermarket, and that he had a gun. Officers apprehended Quarles (D) in the rear of the store. The first officer frisked D and found an empty shoulder holster. After handcuffing D, the officer asked where the gun was. D responded, "The gun is over there" while he nodded to some empty cartons. The officer found the loaded revolver in one of the cartons. The officer read D his Miranda rights. D waived those rights, and then stated that he owned the revolver and had purchased it in Miami. D was tried for criminal possession of a weapon. The New York courts suppressed the statement "the gun is over there" as well as the gun itself because they were obtained in violation of D's Miranda rights. The courts also excluded his statements about the ownership of the gun and the place of purchase as having been fatally tainted by the seizure of the gun and D's response about its location. The State (P) appealed.
HOLDING AND DECISION: (Rehnquist, J.) Can considerations of public safety justify the violation of a defendant's Miranda rights? Yes. There is a public safety exception to the rule requiring Miranda rights that can justify their absence. Miranda does not require officers to refrain from asking questions reasonably prompted by a concern for public safety (the exception). In this case, the police had reason to believe that D had just removed the gun from his empty holster and discarded it in the supermarket. Miranda might deter suspects from answering questions if officers were required to read them prior to asking questions about the location of a weapon. Reversed, for P.
Extending Miranda to “Question First, Warn Later” Interrogation Technique:
Missouri v. Seibert
124 S. Ct. 2601 (2004) (Souter, J.)
• “Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let a lone persist in so believing once the police began to lead him over the same ground again.”
PROCEDURAL POSTURE: A jury convicted defendant of second-degree murder in a state trial court. On appeal, the state court of appeals affirmed. The Supreme Court of Missouri reversed. The United States Supreme Court granted certiorari to resolve a split in the United States Courts of Appeals.
OVERVIEW: After defendant's bedridden son's death, a mentally ill teenager died during a scheme to conceal defendant's neglect of the son. Employing a procedure called "question-first" interrogation, police arrested defendant for the death of the teenager but refrained from giving her Miranda warnings. Twenty minutes after eliciting a confession, police Mirandized defendant and requestioned her. The trial court suppressed the prewarning statement but admitted the postwarning recitation. The Missouri Supreme Court found that, because the interrogation was nearly continuous, the second statement, clearly the product of the invalid first statement, also should have been suppressed. The United States Supreme Court held that the question-first tactic effectively threatened to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted. Because the facts did not reasonably support a conclusion that the warnings given could have served their purpose, the postwarning statements also were inadmissible. Strategists dedicated to draining the substance out of Miranda could not accomplish by training what the Court had previously held Congress could not do by statute.
OUTCOME: The Court affirmed the judgment of the Missouri Supreme Court
O'Connor, joined by Rehnquist, Ch. J., and by Scalia and Thomas, JJ., dissenting, said that (1) the officer's two-step interrogation procedure ought to have been analyzed under the voluntariness standards that were central to the Fifth Amendment and had been reiterated in Oregon v Elstad (1985) 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285; (2) Elstad commanded that if the accused's first statement was shown to have been involuntary, then the court was required to examine whether the taint had dissipated through (a) the passing of time, or (b) a change in circumstance; (3) the accused's postwarning statement ought to be suppressed if the accused showed that it was involuntary despite the Miranda warnings; and (3) although this analysis ought to be left for the Missouri courts to conduct on remand, (a) unlike the officers in Elstad, the officer in the instant case had referred to the accused's unwarned statement during the second part of the interrogation when the accused had made a statement at odds with her unwarned confession, and (b) such a tactic might bear on the voluntariness inquiry.
This is a Miranda violation. They just do not take away the inherent coercion because of what happened.
Police custodial interrogation
Miranda Limitations – Fruit of the Poisonous Tree:
United States v. Patane
124 S. Ct. 2620 (2004) (Thomas, J.)
• Is Physical Evidence Derived From a Failure to Comply with the Miranda Rules Admissible?
It’s profilactic rule and
The fifth Amendment only protects…unless there is a constitutional violation, this gun is admissible.
Cases good for multiple choice questions:
Miranda Exceptions – Impeachment
Harris v. New York
401 U.S. 222(1971)(Burger, CJ)
Impeachment: Prosecutor may use a statement obtained in violation of Miranda to impeach a defendant who testifies at trial inconsistently with that statement
Prosecutor allowed to go into it for impeachment purposes.
Oregon v. Hass
420 U.S. 714(1975)(Blackmun, J)
Going beyond Harris : Uncounseled statement provided after suspect asks for a lawyer (but not provided with one) can be used for impeachment purposes
Edwards
Impeachment and a Due Process violation
Mincey v. Arizona
(1978)
Use of an “involuntary” or “coerced” statement, even for impeachment purposes, would constitute “a denial of due process of law”
The reason why this was litigated was
Impeachment based upon compelled grand jury testimony:
New Jersey v. Portash
440 U.S. 450(1979)(Stewart, J)
Testimony given by a person in response to a grant of legislative immunity could not be used to impeach him at his subsequent trial for extortion and misconduct in office.
You are still being forced to give testimony and the net result is the same as Mincey. It is the equivalent of a forced…
Impeaching with Pretrial Silence
Can the prosecutor use the defendant’s silence before trial to impeach or cast doubt on whatever affirmative testimony defendant gives at trial?
If so, under what circumstances?
Impeachment by silence:
Doyle v. Ohio
426 U.S. 610(1976)(Powell, J)
Impermissible to use defendant’s silence upon receipt of Miranda warnings for impeachment purposes.
How Doyle is Subsequently Distinguished?
• Jenkins v. Anderson ,
447 U.S. 231(1980)(Powell, J)
Use of defendant’s pre-arrest silence for impeachment purposes
• Fletcher v. Weir, 455 U.S. 603(1982)(per curiam)
Use of Defendant’s post-arrest (pre-Miranda warnings) silence for impeachment purposes
Miranda violation and Habeas Corpus:
Withrow v. Williams
507 U.S. 680 (1993)(Souter, J)
• Stone v. Powell “does not extend to a state prisoner’s claim that his conviction rests on statements obtained in violation of Miranda”
GRAND JURIES
• Two basic functions historically
– “Sword” - Investigative
– “Shield” - Screening potential defendants from unwarranted charges
Constitutional Requirement to Grand Jury Indictment?
• The 5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous offense, unless on a presentment or indictment of a grand jury....” (Federal Courts only)
The Grand Jury:
United States v. Williams
504 U.S. 36 (1992)(Scalia, J)
• In light of the grand jury’s accusatory nature, there is no obligation on the government’s part to present to the grand jury material exculpatory evidence
Federal Courts can’t tell the state courts what to do in its procedures. There is no obligation to present exculpatory evidence (evidence that he did not do it).
The Grand Jury and the Privilege Against Self-Incrimination:
Hoffman v. United States
341 U.S. 479 (1951)(Clark, J)
• “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.”
The Grand Jury and Immunity:
Whether or not
Kastigar v. United States
406 U.S. 441 (1972)(Powell, J)
• Statutory grant of immunity co-extensive with Fifth Amendment protection is sufficient to compel testimony over Fifth Amendment privilege
The court had to decide
Issue: Whether the statute is good enough to pass constitutional muster.
DOUBLE JEOPARDY
• Double jeopardy clause of the Fifth Amendment guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb….”
A prohibition applicable to the states
“In Jeopardy”
• A person is not “in jeopardy” of life or limb until the jury is empaneled and sworn (Crist v. Bretz, 437 US 28 (1978) or, in a bench trial, until the first witness is sworn (Serfass v. US, 420 US 377 (1975)).
Double jeopardy does not apply until jury has been picked
“Of Life or Limb”
• 5th Am provides that a D may not be twice placed in jeopardy “of life or limb” for the “same offence.”
This applies to ALL crimes.
Foster case
Contempt CPO + Assault
Assault - Assault
Charges of indictment
Assault, kidnapping, threat to kill
The test the court used “Same Offence” (Important)
• The Blockburger test: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
Whether…
Reprosecution After a Mistrial
Illinois v. Somerville
410 US 458 (1973) (Rehnquist, J)
• “A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.”
What is the “manifest necessity” requirement?
• According to Perez, reprosecution following a Defendant-opposed mistrial is permitted if, “taking all the circumstances into consideration, there is a manifest necessity” in existence for terminating the trial or if “the ends of public justice would otherwise be defeated.”
Oregon v. Kennedy
456 U.S. 667 (1982) (Rehnquist, J)
• “To what extent should the applicable double jeopardy standard be different where the defendant either requested the mistrial or expressly acquiesced in the court’s suggestion that a mistrial be declared?”
The general rule is no bar
1497: the judge presiding over the first trial
Appeal by the Government Following an “Acquittal” (that could result in reprosecution):
United States v. Scott
437 U.S. 82 (1978) (Rehnquist, J)
• “We now conclude that where the defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred by 18 U.S.C. 3731.”
General Rule: Someone who has been acquitted…
Reprosecution Following a Conviction
Lockhart v. Nelson
488 U.S. 33 (1988) (Rehnquist, CJ)
• “Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to ‘obtai[n] a fair readjudication of his guilt free from error.’”
What is the rule announced in Burks?
• “Burks held that when a defendant’s conviction is reversed by an appellate court on the sole ground that the evidence was insufficient to sustain the jury’s verdict, the Double Jeopardy Clause bars a retrial on the same charge.”
Reprosecution by a Different Sovereign:
Heath v. Alabama
474 U.S. 82 (1985) (O’Connor, J)
• “The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause.”
What is the Dual Sovereignty Doctrine?
• “When a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offenses.’”
The Sixth Amendment Right to Counsel
• Right to counsel generally under 6th Amendment
• Focus on right to representation at trial
• When is a D entitled to appointed counsel under the 6th Amendment?
This is not a right for a person to pick an attorney. We are talking about when the government will be required to pay for an attorney for a particular individual.
Language of 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”
Right to Appointed Counsel – Felonies
Betts v. Brady
316 U.S. 455 (1942)
• Prior to 1963, what requirements, if any, did federal Constitution impose on states regarding duty to appoint counsel in criminal prosecutions?
The defendant was a man of “ordinary intelligence and ability” who had once before been in court and thus was “not unfamiliar with criminal procedure.”
There was no constitutional requirement that the state appoint counsel because it was a bench trial.
Overruled by Gideon v. Wainwright.
Gideon v. Wainwright 372 U.S. 335 (1963)
Poolroom caper case
• Sixth amendment Right to Counsel protections applicable to states through 14th Amendment due process clause
Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required by the Sixth and Fourteenth Amendments to the Constitution to provide lawyers in criminal cases for defendants unable to afford their own attorneys.
Defendant was charged with the robbery of a poolroom. At trial he was denied appointed counsel. He was convicted and sentenced to five years imprisonment.
The Supreme Court said that Gideon had been denied a fair trial because “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”
Rule: The Sixth Amendment is applicable to the states for felonies; therefore, the states have to appoint counsel under the Sixth Amendment.
Right to Appointed Counsel – Misdemeanors
Argersinger v. Hamlin
407 U.S. 25 (1972)
• What about misdemeanors?
• Does Gideon right to appointed counsel extend?
• “[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.”
The Court held that the Sixth Amendment, in granting a right to counsel, did not distinguish between felonies and misdemeanors (as it did in providing a right to jury trial).
The Supreme Court extended the right to counsel to all indigent misdemeanor defendants faced with a potential jail sentence.
A person is entitled to counsel only when sentenced to a term of imprisonment.
Right to Appointed Counsel
Scott v. Illinois
440 U.S. 367 (1979)
• “We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”
As long as an indigent defendant is not sentenced to imprisonment, the state is not required to appoint counsel for him, even if the offense is one in which is punishable by imprisonment.
This holding means that even if the offense charged is a felony under state law, the state does not have to supply an indigent with counsel as long as the judge is willing merely to impose a fine.
Right to Appointed Counsel
Alabama v. Shelton
535 U.S. 654 (2002) (Ginsburg, J)
• Suspended sentence (given probation) of imprisonment triggers 6th Amendment “term of imprisonment” rule announced in Argersinger and Scott
The courts want to know that if you are getting the suspended sentence of imprisonment, the case for which you got that term of imprisonment, you had the guiding hands of counsel. It has to be fair, just, and reliable.
CLASS 12
• Massiah and the Sixth Amendment right to counsel in the context of interrogation
• Eyewitness Identification
BAR EXAM: There is nothing about the right to a lawyer for a criminal case on appeal. There is no constitutional right to appeal.
All jurisdictions provide some kind of statutory right of the first appeal of the first conviction. The Fourteenth Amendment (Due Process Clause) requires a state to provide counsel for an indigent defendant on his or her first statutory right of appeal. Beyond that appeals are discretionary.
One question for today:
If adversarial judicial criminal proceedings have commenced (and as a result, 6th Amendment has attached) is the right to counsel any different from the Fifth Amendment and Miranda for interrogation purposes; i.e., what restrictions do Massiah and progeny impose on police in context of interrogations and confessions?
How are they different?
Language of 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”
Compare with 5th Amendment:
“No person…shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law….”
Who: A person is different from being the accused.
When: Criminal prosecutions vs. a criminal case. The prosecutor has brought out all the stops in a criminal prosecution – the stakes have gone up.
Interrogations and Confessions – 6th Amendment Limitations
Massiah v. United States377 U.S. 201(1964)(Stewart, J)
“We hold that the petitioner was denied the basic protections of [the right to counsel] 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 counsel.”
AJCP: Adversarial Judicial Criminal Proceeding
FACTS: Massiah (D) was indicted on several federal narcotics violations and conspiracy to possess narcotics aboard a United States vessel. He retained a lawyer, pled not guilty, and was released on bail. A codefendant, Colson, also retained a lawyer, pled not guilty, and was released on bail. Colson then invited D to discuss the pending case in Colson's car, parked on a city street. Unknown to D, Colson had agreed to cooperate with federal agents in the ongoing investigation. A radio transmitter was placed under the seat in Colson's car, enabling a nearby federal agent to hear and record the conversation between the two defendants. During the conversation, D made several damaging admissions. Based on these admissions, D was convicted of several narcotics offenses. D's convictions were affirmed by the U.S. Court of Appeals. D appealed.
ISSUE: Are self-incriminating statements elicited by law enforcement from a defendant after indictment and in the absence of counsel admissible at trial?
RULE OF LAW: A defendant's 6th Amendment right to counsel is severely violated when law enforcement officials attempt to interrogate and elicit a confession from a defendant after indictment without the presence of counsel.
You may have a Fourth, Fifth, and Sixth Amendment problem on an exam. This is a good case to review.
Attachment of 6th Amendment Right to Counsel
Brewer v. Williams(WILLIAMS I), 430 U.S. 387(1977)(Stewart, J)
Know for EXAM:
“Adversarial Judicial Proceeding”: “Whatever else it may mean, the right to counsel * * * means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him – ‘whether by way of (1) formal charge, (2) preliminary hearing, (3) indictment, (4) information, or (5) arraignment.’”
If you’ve got one of those five things, you’ve got AJCP.
The Sixth Amendment applies because he had been arraigned (appeared in court).
Formal Charge: A judge has issued the charge. Probable cause arrests on the street are not a commencement of AJCP – it has to be a formal charge.
Preliminary Hearing: A probable cause hearing where a judge is present.
Indictment: A grand jury at the end of the day gives the indictment to a judge.
Information: A formal document that comes out of a preliminary exam that the government has convinced the court that there is probable cause for a crime.
Arraignment: You are arraigned on information or documents and a judge is involved.
The Court held that the state had failed to show that Williams had effectively waived his right to counsel. Waiver is an “intentional relinquishment or abandonment of a known right or privilege. Williams told police that he would tell them the “whole story” after consulting with his lawyer.
A person can waive one’s right to counsel under the Sixth Amendment.
This is not a KIV waiver. Even though there was knowledge and understanding doesn’t mean that he actually waived.
Look for deliberate elicitation of incriminating statements.
Justification for threshold requirement of adversarial judicial proceedings? Review the language of the 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense.”
Deliberate Elicitation
United States v. Henry447 U.S. 264(1980)(Burger, CJ)
A further examination of “deliberate elicitation”: Does conduct less than “purposeful” result in “deliberate elicitation”?
FACTS: Henry (D) was arrested and indicted for armed bank robbery. An FBI agent approached Nichols, a cellmate of D's, and told him to be alert to any statements made by D, but not to initiate any conversation with him, or to question him concerning the robbery. Nichols reported that D told him about the robbery. Nichols was paid for the information. D was convicted based on Nichol's testimony. D appealed; his right to counsel was violated. The court of appeals reversed. The Supreme Court granted certiorari.
ISSUE: May the government intentionally use undercover informants to solicit or receive statements after an accused's right to counsel has attached?
Issue per Corbett: Whether this was deliberate elicitation under Massiah.
The informant in Massiah was “active. ” The activity level was different in this case.
Holding: Statements deliberately elicited from a party under arrest after his right to counsel has attached are inadmissible under the sixth amendment. These types of statements are not products of a knowing and voluntary waiver of the suspect's constitutional rights. D was unaware of Nichol's status and related to him as a fellow inmate. The admission of the statements was reversible error. Affirmed.
Kuhlmann v. Wilson477 U.S. 436(1986)(Powell, J)
Sixth Amendment violation by placing police agent in jail cell with person against whom formal charges have been brought? Police and their informant must take some action “beyond merely listening that was designed deliberately to elicit incriminating remarks.”
Wilson (D) and two others robbed a garage and killed the night dispatcher. Four days later, D turned himself in. D claimed that he witnessed the robbery and murder but that he had nothing to do with them. D was indicted for murder. In jail, D told his cellmate (a police informer) the same story. The informant did not elicit more information. Several days later, D changed his story and told the informer that he and the others planned and carried out the robbery, killing the dispatcher. The informer reported these statements to the police, and these statements were used to convict D.
Issue: Is the use of spontaneous and unsolicited incriminating statements made by an indicted criminal defendant to a jail house informant in court a denial of his 6th Amendment right to counsel?
Holding: The 6th Amendment is not violated if the state obtains incriminating evidence against a defendant after the right to counsel has attached merely by listening to statements made by the defendant in the absence of his attorney. In this case, D must demonstrate that the police and their informant took some action designed to elicit incriminating remarks to show a violation of his 6th Amendment right to counsel. In this case, the informer never asked D about the murder. D's statements were spontaneous and unsolicited.
The only difference between these two cases is the causal link. The causal link was present in Henry and not present in Kuhlmann. It was a one-sided conversation and it doesn’t mean that it is enough to say there is deliberate elicitation.
The Court concluded that the product of those statements was the incriminating statement.
Interpreting Massiah:
Maine v. Moulton474 U.S. 159(1985)(Brennan, J)
“[I]ncriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining the evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.”
Corbett: just because a guy is indicted or a guy is formally charged doesn’t mean that the police can never approach that guy again.
If you’ve got a situation where a guy is indicted but the police have information that he is going to kill a witness – just because AJCP has commenced with the theft doesn’t mean they can’t investigate a potential killing of a witness.
That doesn’t mean that they can’t stop and pursue the other charges the guy could be involved in – it’s a new crime. If the police do what we expect them to do and they get statements from the first crime, which would violate the Sixth Amendment.
Resumption of Interrogation
Michigan v. Jackson475 U.S. 625(1986)(Stevens, J)
Court extends the protections announced in Edwards v. Arizona, a Miranda waiver case, to the Sixth Amendment.
Facts: Before D goes into court he says he’s willing to talk – a Fifth Amendment Miranda waiver. He goes into court and invokes the Sixth Amendment right to counsel.
Rule: this is the thinking of Edwards superimposed in the Fifth Amendment and Sixth Amendment context.
The Court had held that once the Sixth Amendment right to counsel attaches, the police may not question a defendant regarding that crime. But implicit in the Jackson ruling was the fact that the protection against subsequent interrogation related only to the crime with which the defendant had been charged.
Resumption of Interrogation
McNeil v. Wisconsin501 U.S. 171(1991)(Scalia, J)
Sixth Amendment right to counsel is “offense specific”: Police not required under Jackson to cease interrogation regarding other, uncharged offenses, since the 6th Amendment did not apply as to those crimes
“Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser.”
Paul McNeil was arrested in May, 1987, on suspicion that he had committed armed robbery in West Allis, Wisconsin, near Milwaukee. He invoked his Miranda rights and the police ceased questioning him. He was arraigned, and a bail hearing was held. He was represented by a public defender at this hearing. After the bail hearing, McNeil was approached by other detectives investigating a murder in Caledonia, Wisconsin, near Racine.
Eventually, McNeil was tried for the Caledonia murder. He moved to suppress the three statements about that incident he had given to the police on the grounds that they had violated his right to counsel because he had been represented by a lawyer at the bail hearing on the West Allis robbery. The trial court denied the motion, and McNeil was convicted and sentenced to 60 years in prison.
Because McNeil had not been charged with the Caledonia crimes at the time of the bail hearing on the West Allis hearing, the Sixth Amendment could not have given McNeil a way to avoid police questioning about the Caledonia murder.
The Sixth Amendment only applies to the crime you are invoking it against. McNeil cannot invoke the Sixth Amendment right for the other charges because there was no criminal prosecution (AJCP).
Resumption of Interrogation
Texas v. Cobb121 S. Ct. 1335 (2001)(Rehnquist, CJ)
How do we know if something is “offense specific” or not? In evaluating “offense specific” nature of Sixth Amendment right to counsel, “offense” is defined as explained in Blockburger v. United States: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
Waiver of Sixth Amendment rights
Patterson v. Illinois487 U.S. 285(1988)(White, J)
What constitutes a valid waiver of the Sixth Amendment - Massiah right?
“As a general matter, then, an accused who is admonished with the [Miranda warnings] has been sufficiently apprised of the nature of the Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.”
Patterson hasn’t been to court yet but he does have Sixth Amendment protection because he had been indicted – a judge was involved. Both the Fifth Amendment and the Sixth Amendment can apply together for a certain period of time.
Corbett: Waiver of Miranda rights is generally good enough for the Sixth Amendment but it’s not automatic. Moran v. Burbine
Impeachment and the 6th Amendment Right to Counsel
Michigan v. Harvey494 U.S. 344(1990)(Rehnquist, CJ)
Impeachment and the Sixth Amendment Right to Counsel: Statements obtained in violation of the rule established in Michigan v. Jackson may be used to impeach a defendant’s false or inconsistent testimony
An Edwards violation can still be used for impeachment purposes.
Eyewitness Identification – 6th Amendment Context
United States v. Wade388 U.S. 218 (1967)
• Eyewitness ID: Post-indictment, pretrial physical lineup is a “critical stage” in prosecution requiring presence of counsel
Issue: Whether or not a lineup requires the assistance of counsel
Rule: If the defendant has been formally charged, then he is entitled to have his counsel present at any police lineup.
A critical stage of the Sixth Amendment is where there is more than a minimal risk that his counsel’s absence might derogate from his right to a fair trial.
Our cases have construed the Sixth Amendment guarantee to apply to "critical" stages of the proceedings. The guarantee reads: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."
Post AJCP physical lineup without an attorney present violates the Sixth Amendment. That doesn’t automatically mean that an in court identification is excluded.
Factors to Consider for Independent Source Test articulated by Wong Sun
1. The prior opportunity to observe the alleged criminal act
2. The existence of any discrepancy between any pre-lineup description and the defendant’s actual description
3. Any identification prior to lineup of another person
4. The identification by picture of the defendant prior to the lineup
5. Failure to identify the defendant on a prior occasion
6. The lapse of time between the alleged act and the lineup identification
7. Also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup
Eyewitness Identification – 6th Amendment Context
Kirby v. Illinois 406 U.S. 682 (1972)
• Turning away from Wade: Right to counsel rule not applicable to show-up prior to initiation of adversarial judicial proceedings
RULE OF LAW: If one has not been indicted or formally charged with a crime, he is not entitled to have counsel present at a police lineup.
Eyewitness Identification – 6th Amendment Context
Moore v. Illinois434 U.S. 220 (1977)
• Adversarial judicial criminal proceedings are “initiated,” for 6th Amendment purposes, at the pre-indictment stage of a preliminary hearing.
At a preliminary hearing, begin
United States v. Ash413 U.S. 300 (1973)
• Non-corporeal ID procedures: A person against whom adversarial judicial criminal proceedings have commenced is not entitled to the presence of counsel when a witness attempts to ID suspect in a photo array
Post AJCP,
CLASS 13
• Eyewitness Identification and Due Process
• Sixth Amendment
– Right to Effective Assistance of Counsel
– Right to Jury Trial
– Right to Speedy Trial
Eyewitness Identification – Due Process Context
Stovall v. Denno 388 U.S. 293 (1967)
• One without a right to counsel argument can argue due process violation if ID procedure “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.”
Two prong test:
1. Unnecessarily suggestive; and
2. Conducive to irreparable mistaken identification
Eyewitness Identification – Due Process Context
Manson v. Braithwaite432 U.S. 98 (1977)
• Rejecting the per se rule in favor of the “totality of circumstances” test - furnishing protection against the use of unreliable eyewitness testimony
Page 780:
EFFECTIVE ASSISTANCE OF COUNSEL
• Anything in 6th Amendment language requiring effective assistance of counsel?
– Sixth Amendment: “In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.”
Jones v. Barnes463 U.S. 745 (1983)
• An indigent defendant may not compel appointed counsel to argue all non-frivolous points if counsel, as a matter of “professional judgment,” decides not to do so
Strickland v. Washington466 U.S. 668 (1984)
• The Supreme Court defines “ineffective assistance of counsel” for Sixth Amendment purposes: The “benchmark” for evaluating such a claim is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial [or capital sentencing hearing] cannot be relied on as having produced a just result.”
Understanding the approach to ineffective assistance of counsel.
Example of not an ineffective assistance of counsel.
Fundamental fairness.
Effective Assistance of Counsel –
US v. Gonzalez-Lopez126 S. Ct. 2557 (2006)
• “In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation complete.”
Out of state attorney had to get approval.
Effective Assistance of Counsel:
United States v. Cronic466 U.S. 648 (1984)
• Rejection of the “inferential approach” to ineffective assistance of counsel claims
We can infer
Denied counsel at a critical stage of his trial. (if the atty is late)
Bell v. Cone535 US 685 (2002) (Rehnquist, CJ)
• Counsel’s failure to present mitigating evidence or make closing argument at capital sentencing proceeding properly held not to be ineffective
– Attorney must completely fail to oppose prosecution case to obtain presumption of prejudice stated in Cronic
Strickland is the rule
Florida v. Nixon, 125 S.Ct. 551 (2004)
• Does a defense attorney’s concession that his client committed murder automatically constitute ineffective assistance of counsel when that strategy was implemented without the “affirmative, explicit acceptance” of the defendant?
Still need to apply to two-prong test of Strickland
Nix v. Whiteside 475 U.S. 157 (1986)
• Is a lawyer immunized from a Sixth Amendment “verdict” of inadequate representation if she acts in conformity with recognized ethical rules?
He breached the duty of confidentiality.
RIGHT TO A JURY TRIAL
• Sixth Amendment:
– “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….”
Duncan v. Louisiana, 391 US 145 (1968)(White, J)
• Right to counsel generally under 6th Amendment
• Focus on right to representation at trial
• When is a D entitled to appointed counsel under the 6th Amendment?
This is not a right for a person to pick an attorney. We are talking about when the government will be required to pay for an attorney for a particular individual.
Language of 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”
Right to Appointed Counsel – Felonies
Betts v. Brady
316 U.S. 455 (1942)
• Prior to 1963, what requirements, if any, did federal Constitution impose on states regarding duty to appoint counsel in criminal prosecutions?
The defendant was a man of “ordinary intelligence and ability” who had once before been in court and thus was “not unfamiliar with criminal procedure.”
There was no constitutional requirement that the state appoint counsel because it was a bench trial.
Overruled by Gideon v. Wainwright.
Gideon v. Wainwright 372 U.S. 335 (1963)
Poolroom caper case
• Sixth amendment Right to Counsel protections applicable to states through 14th Amendment due process clause
Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required by the Sixth and Fourteenth Amendments to the Constitution to provide lawyers in criminal cases for defendants unable to afford their own attorneys.
Defendant was charged with the robbery of a poolroom. At trial he was denied appointed counsel. He was convicted and sentenced to five years imprisonment.
The Supreme Court said that Gideon had been denied a fair trial because “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”
Rule: The Sixth Amendment is applicable to the states for felonies; therefore, the states have to appoint counsel under the Sixth Amendment.
Right to Appointed Counsel – Misdemeanors
Argersinger v. Hamlin
407 U.S. 25 (1972)
• What about misdemeanors?
• Does Gideon right to appointed counsel extend?
• “[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.”
The Court held that the Sixth Amendment, in granting a right to counsel, did not distinguish between felonies and misdemeanors (as it did in providing a right to jury trial).
The Supreme Court extended the right to counsel to all indigent misdemeanor defendants faced with a potential jail sentence.
A person is entitled to counsel only when sentenced to a term of imprisonment.
Right to Appointed Counsel
Scott v. Illinois
440 U.S. 367 (1979)
• “We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”
As long as an indigent defendant is not sentenced to imprisonment, the state is not required to appoint counsel for him, even if the offense is one in which is punishable by imprisonment.
This holding means that even if the offense charged is a felony under state law, the state does not have to supply an indigent with counsel as long as the judge is willing merely to impose a fine.
Right to Appointed Counsel
Alabama v. Shelton
535 U.S. 654 (2002) (Ginsburg, J)
• Suspended sentence (given probation) of imprisonment triggers 6th Amendment “term of imprisonment” rule announced in Argersinger and Scott
The courts want to know that if you are getting the suspended sentence of imprisonment, the case for which you got that term of imprisonment, you had the guiding hands of counsel. It has to be fair, just, and reliable.
CLASS 12
• Massiah and the Sixth Amendment right to counsel in the context of interrogation
• Eyewitness Identification
BAR EXAM: There is nothing about the right to a lawyer for a criminal case on appeal. There is no constitutional right to appeal.
All jurisdictions provide some kind of statutory right of the first appeal of the first conviction. The Fourteenth Amendment (Due Process Clause) requires a state to provide counsel for an indigent defendant on his or her first statutory right of appeal. Beyond that appeals are discretionary.
One question for today:
If adversarial judicial criminal proceedings have commenced (and as a result, 6th Amendment has attached) is the right to counsel any different from the Fifth Amendment and Miranda for interrogation purposes; i.e., what restrictions do Massiah and progeny impose on police in context of interrogations and confessions?
How are they different?
Language of 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to…have the assistance of counsel for his defense.”
Compare with 5th Amendment:
“No person…shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty, or property, without due process of law….”
Who: A person is different from being the accused.
When: Criminal prosecutions vs. a criminal case. The prosecutor has brought out all the stops in a criminal prosecution – the stakes have gone up.
Interrogations and Confessions – 6th Amendment Limitations
Massiah v. United States377 U.S. 201(1964)(Stewart, J)
“We hold that the petitioner was denied the basic protections of [the right to counsel] 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 counsel.”
AJCP: Adversarial Judicial Criminal Proceeding
FACTS: Massiah (D) was indicted on several federal narcotics violations and conspiracy to possess narcotics aboard a United States vessel. He retained a lawyer, pled not guilty, and was released on bail. A codefendant, Colson, also retained a lawyer, pled not guilty, and was released on bail. Colson then invited D to discuss the pending case in Colson's car, parked on a city street. Unknown to D, Colson had agreed to cooperate with federal agents in the ongoing investigation. A radio transmitter was placed under the seat in Colson's car, enabling a nearby federal agent to hear and record the conversation between the two defendants. During the conversation, D made several damaging admissions. Based on these admissions, D was convicted of several narcotics offenses. D's convictions were affirmed by the U.S. Court of Appeals. D appealed.
ISSUE: Are self-incriminating statements elicited by law enforcement from a defendant after indictment and in the absence of counsel admissible at trial?
RULE OF LAW: A defendant's 6th Amendment right to counsel is severely violated when law enforcement officials attempt to interrogate and elicit a confession from a defendant after indictment without the presence of counsel.
You may have a Fourth, Fifth, and Sixth Amendment problem on an exam. This is a good case to review.
Attachment of 6th Amendment Right to Counsel
Brewer v. Williams(WILLIAMS I), 430 U.S. 387(1977)(Stewart, J)
Know for EXAM:
“Adversarial Judicial Proceeding”: “Whatever else it may mean, the right to counsel * * * means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him – ‘whether by way of (1) formal charge, (2) preliminary hearing, (3) indictment, (4) information, or (5) arraignment.’”
If you’ve got one of those five things, you’ve got AJCP.
The Sixth Amendment applies because he had been arraigned (appeared in court).
Formal Charge: A judge has issued the charge. Probable cause arrests on the street are not a commencement of AJCP – it has to be a formal charge.
Preliminary Hearing: A probable cause hearing where a judge is present.
Indictment: A grand jury at the end of the day gives the indictment to a judge.
Information: A formal document that comes out of a preliminary exam that the government has convinced the court that there is probable cause for a crime.
Arraignment: You are arraigned on information or documents and a judge is involved.
The Court held that the state had failed to show that Williams had effectively waived his right to counsel. Waiver is an “intentional relinquishment or abandonment of a known right or privilege. Williams told police that he would tell them the “whole story” after consulting with his lawyer.
A person can waive one’s right to counsel under the Sixth Amendment.
This is not a KIV waiver. Even though there was knowledge and understanding doesn’t mean that he actually waived.
Look for deliberate elicitation of incriminating statements.
Justification for threshold requirement of adversarial judicial proceedings? Review the language of the 6th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to … have the assistance of counsel for his defense.”
Deliberate Elicitation
United States v. Henry447 U.S. 264(1980)(Burger, CJ)
A further examination of “deliberate elicitation”: Does conduct less than “purposeful” result in “deliberate elicitation”?
FACTS: Henry (D) was arrested and indicted for armed bank robbery. An FBI agent approached Nichols, a cellmate of D's, and told him to be alert to any statements made by D, but not to initiate any conversation with him, or to question him concerning the robbery. Nichols reported that D told him about the robbery. Nichols was paid for the information. D was convicted based on Nichol's testimony. D appealed; his right to counsel was violated. The court of appeals reversed. The Supreme Court granted certiorari.
ISSUE: May the government intentionally use undercover informants to solicit or receive statements after an accused's right to counsel has attached?
Issue per Corbett: Whether this was deliberate elicitation under Massiah.
The informant in Massiah was “active. ” The activity level was different in this case.
Holding: Statements deliberately elicited from a party under arrest after his right to counsel has attached are inadmissible under the sixth amendment. These types of statements are not products of a knowing and voluntary waiver of the suspect's constitutional rights. D was unaware of Nichol's status and related to him as a fellow inmate. The admission of the statements was reversible error. Affirmed.
Kuhlmann v. Wilson477 U.S. 436(1986)(Powell, J)
Sixth Amendment violation by placing police agent in jail cell with person against whom formal charges have been brought? Police and their informant must take some action “beyond merely listening that was designed deliberately to elicit incriminating remarks.”
Wilson (D) and two others robbed a garage and killed the night dispatcher. Four days later, D turned himself in. D claimed that he witnessed the robbery and murder but that he had nothing to do with them. D was indicted for murder. In jail, D told his cellmate (a police informer) the same story. The informant did not elicit more information. Several days later, D changed his story and told the informer that he and the others planned and carried out the robbery, killing the dispatcher. The informer reported these statements to the police, and these statements were used to convict D.
Issue: Is the use of spontaneous and unsolicited incriminating statements made by an indicted criminal defendant to a jail house informant in court a denial of his 6th Amendment right to counsel?
Holding: The 6th Amendment is not violated if the state obtains incriminating evidence against a defendant after the right to counsel has attached merely by listening to statements made by the defendant in the absence of his attorney. In this case, D must demonstrate that the police and their informant took some action designed to elicit incriminating remarks to show a violation of his 6th Amendment right to counsel. In this case, the informer never asked D about the murder. D's statements were spontaneous and unsolicited.
The only difference between these two cases is the causal link. The causal link was present in Henry and not present in Kuhlmann. It was a one-sided conversation and it doesn’t mean that it is enough to say there is deliberate elicitation.
The Court concluded that the product of those statements was the incriminating statement.
Interpreting Massiah:
Maine v. Moulton474 U.S. 159(1985)(Brennan, J)
“[I]ncriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining the evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.”
Corbett: just because a guy is indicted or a guy is formally charged doesn’t mean that the police can never approach that guy again.
If you’ve got a situation where a guy is indicted but the police have information that he is going to kill a witness – just because AJCP has commenced with the theft doesn’t mean they can’t investigate a potential killing of a witness.
That doesn’t mean that they can’t stop and pursue the other charges the guy could be involved in – it’s a new crime. If the police do what we expect them to do and they get statements from the first crime, which would violate the Sixth Amendment.
Resumption of Interrogation
Michigan v. Jackson475 U.S. 625(1986)(Stevens, J)
Court extends the protections announced in Edwards v. Arizona, a Miranda waiver case, to the Sixth Amendment.
Facts: Before D goes into court he says he’s willing to talk – a Fifth Amendment Miranda waiver. He goes into court and invokes the Sixth Amendment right to counsel.
Rule: this is the thinking of Edwards superimposed in the Fifth Amendment and Sixth Amendment context.
The Court had held that once the Sixth Amendment right to counsel attaches, the police may not question a defendant regarding that crime. But implicit in the Jackson ruling was the fact that the protection against subsequent interrogation related only to the crime with which the defendant had been charged.
Resumption of Interrogation
McNeil v. Wisconsin501 U.S. 171(1991)(Scalia, J)
Sixth Amendment right to counsel is “offense specific”: Police not required under Jackson to cease interrogation regarding other, uncharged offenses, since the 6th Amendment did not apply as to those crimes
“Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser.”
Paul McNeil was arrested in May, 1987, on suspicion that he had committed armed robbery in West Allis, Wisconsin, near Milwaukee. He invoked his Miranda rights and the police ceased questioning him. He was arraigned, and a bail hearing was held. He was represented by a public defender at this hearing. After the bail hearing, McNeil was approached by other detectives investigating a murder in Caledonia, Wisconsin, near Racine.
Eventually, McNeil was tried for the Caledonia murder. He moved to suppress the three statements about that incident he had given to the police on the grounds that they had violated his right to counsel because he had been represented by a lawyer at the bail hearing on the West Allis robbery. The trial court denied the motion, and McNeil was convicted and sentenced to 60 years in prison.
Because McNeil had not been charged with the Caledonia crimes at the time of the bail hearing on the West Allis hearing, the Sixth Amendment could not have given McNeil a way to avoid police questioning about the Caledonia murder.
The Sixth Amendment only applies to the crime you are invoking it against. McNeil cannot invoke the Sixth Amendment right for the other charges because there was no criminal prosecution (AJCP).
Resumption of Interrogation
Texas v. Cobb121 S. Ct. 1335 (2001)(Rehnquist, CJ)
How do we know if something is “offense specific” or not? In evaluating “offense specific” nature of Sixth Amendment right to counsel, “offense” is defined as explained in Blockburger v. United States: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
Waiver of Sixth Amendment rights
Patterson v. Illinois487 U.S. 285(1988)(White, J)
What constitutes a valid waiver of the Sixth Amendment - Massiah right?
“As a general matter, then, an accused who is admonished with the [Miranda warnings] has been sufficiently apprised of the nature of the Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.”
Patterson hasn’t been to court yet but he does have Sixth Amendment protection because he had been indicted – a judge was involved. Both the Fifth Amendment and the Sixth Amendment can apply together for a certain period of time.
Corbett: Waiver of Miranda rights is generally good enough for the Sixth Amendment but it’s not automatic. Moran v. Burbine
Impeachment and the 6th Amendment Right to Counsel
Michigan v. Harvey494 U.S. 344(1990)(Rehnquist, CJ)
Impeachment and the Sixth Amendment Right to Counsel: Statements obtained in violation of the rule established in Michigan v. Jackson may be used to impeach a defendant’s false or inconsistent testimony
An Edwards violation can still be used for impeachment purposes.
Eyewitness Identification – 6th Amendment Context
United States v. Wade388 U.S. 218 (1967)
• Eyewitness ID: Post-indictment, pretrial physical lineup is a “critical stage” in prosecution requiring presence of counsel
Issue: Whether or not a lineup requires the assistance of counsel
Rule: If the defendant has been formally charged, then he is entitled to have his counsel present at any police lineup.
A critical stage of the Sixth Amendment is where there is more than a minimal risk that his counsel’s absence might derogate from his right to a fair trial.
Our cases have construed the Sixth Amendment guarantee to apply to "critical" stages of the proceedings. The guarantee reads: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."
Post AJCP physical lineup without an attorney present violates the Sixth Amendment. That doesn’t automatically mean that an in court identification is excluded.
Factors to Consider for Independent Source Test articulated by Wong Sun
1. The prior opportunity to observe the alleged criminal act
2. The existence of any discrepancy between any pre-lineup description and the defendant’s actual description
3. Any identification prior to lineup of another person
4. The identification by picture of the defendant prior to the lineup
5. Failure to identify the defendant on a prior occasion
6. The lapse of time between the alleged act and the lineup identification
7. Also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup
Eyewitness Identification – 6th Amendment Context
Kirby v. Illinois 406 U.S. 682 (1972)
• Turning away from Wade: Right to counsel rule not applicable to show-up prior to initiation of adversarial judicial proceedings
RULE OF LAW: If one has not been indicted or formally charged with a crime, he is not entitled to have counsel present at a police lineup.
Eyewitness Identification – 6th Amendment Context
Moore v. Illinois434 U.S. 220 (1977)
• Adversarial judicial criminal proceedings are “initiated,” for 6th Amendment purposes, at the pre-indictment stage of a preliminary hearing.
At a preliminary hearing, begin
United States v. Ash413 U.S. 300 (1973)
• Non-corporeal ID procedures: A person against whom adversarial judicial criminal proceedings have commenced is not entitled to the presence of counsel when a witness attempts to ID suspect in a photo array
Post AJCP,
CLASS 13
• Eyewitness Identification and Due Process
• Sixth Amendment
– Right to Effective Assistance of Counsel
– Right to Jury Trial
– Right to Speedy Trial
Eyewitness Identification – Due Process Context
Stovall v. Denno 388 U.S. 293 (1967)
• One without a right to counsel argument can argue due process violation if ID procedure “was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.”
Two prong test:
1. Unnecessarily suggestive; and
2. Conducive to irreparable mistaken identification
Eyewitness Identification – Due Process Context
Manson v. Braithwaite432 U.S. 98 (1977)
• Rejecting the per se rule in favor of the “totality of circumstances” test - furnishing protection against the use of unreliable eyewitness testimony
Page 780:
EFFECTIVE ASSISTANCE OF COUNSEL
• Anything in 6th Amendment language requiring effective assistance of counsel?
– Sixth Amendment: “In all criminal prosecutions, the accused shall…have the assistance of counsel for his defense.”
Jones v. Barnes463 U.S. 745 (1983)
• An indigent defendant may not compel appointed counsel to argue all non-frivolous points if counsel, as a matter of “professional judgment,” decides not to do so
Strickland v. Washington466 U.S. 668 (1984)
• The Supreme Court defines “ineffective assistance of counsel” for Sixth Amendment purposes: The “benchmark” for evaluating such a claim is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial [or capital sentencing hearing] cannot be relied on as having produced a just result.”
Understanding the approach to ineffective assistance of counsel.
Example of not an ineffective assistance of counsel.
Fundamental fairness.
Effective Assistance of Counsel –
US v. Gonzalez-Lopez126 S. Ct. 2557 (2006)
• “In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation complete.”
Out of state attorney had to get approval.
Effective Assistance of Counsel:
United States v. Cronic466 U.S. 648 (1984)
• Rejection of the “inferential approach” to ineffective assistance of counsel claims
We can infer
Denied counsel at a critical stage of his trial. (if the atty is late)
Bell v. Cone535 US 685 (2002) (Rehnquist, CJ)
• Counsel’s failure to present mitigating evidence or make closing argument at capital sentencing proceeding properly held not to be ineffective
– Attorney must completely fail to oppose prosecution case to obtain presumption of prejudice stated in Cronic
Strickland is the rule
Florida v. Nixon, 125 S.Ct. 551 (2004)
• Does a defense attorney’s concession that his client committed murder automatically constitute ineffective assistance of counsel when that strategy was implemented without the “affirmative, explicit acceptance” of the defendant?
Still need to apply to two-prong test of Strickland
Nix v. Whiteside 475 U.S. 157 (1986)
• Is a lawyer immunized from a Sixth Amendment “verdict” of inadequate representation if she acts in conformity with recognized ethical rules?
He breached the duty of confidentiality.
RIGHT TO A JURY TRIAL
• Sixth Amendment:
– “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….”
Duncan v. Louisiana, 391 US 145 (1968)(White, J)
• “Trial by jury in criminal cases is fundamental to the American scheme of justice.”
Fundamental right. Page 1379
Williams v. Florida 399 US 78 (1970)
• Size of a Jury in a Criminal Case
Apodaca v. Oregon406 U.S. 404 (1972)(White, J)
• Unanimity of the Jury Verdict
Right to a Speedy Trial
Right to Speedy Trial:
Barker v. Wingo407 U.S. 514 (1972)(Powell, J)
• The right to a speedy trial “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused”
• Comes directly from 6th Amendment:
– “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial….”
The Barker Balancing Test:
• Length of delay
• Reason for the delay Bad faith delay by the prosecution
• Defendant’s assertion of his right
• Prejudice to the defendant
Doggett v. United States, 505 U.S. 647 (1992)
• Applying the Barker balancing test: The importance of delay in increasing the possibility that the defense will be impaired
United States v. Lovasco431 U.S. 783 (1977)
• Were defendant’s rights violated where he established actual prejudice (loss of the testimony of a significant witness) and the government’s explanation for the 18-month delay from crime to arrest was desire for further investigation notwithstanding the presence of sufficient evidence to support a charge at an earlier date?
Speedy Trial Act
18 U.S.C. 3161-3174
Fundamental right. Page 1379
Williams v. Florida 399 US 78 (1970)
• Size of a Jury in a Criminal Case
Apodaca v. Oregon406 U.S. 404 (1972)(White, J)
• Unanimity of the Jury Verdict
Right to a Speedy Trial
Right to Speedy Trial:
Barker v. Wingo407 U.S. 514 (1972)(Powell, J)
• The right to a speedy trial “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused”
• Comes directly from 6th Amendment:
– “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial….”
The Barker Balancing Test:
• Length of delay
• Reason for the delay Bad faith delay by the prosecution
• Defendant’s assertion of his right
• Prejudice to the defendant
Doggett v. United States, 505 U.S. 647 (1992)
• Applying the Barker balancing test: The importance of delay in increasing the possibility that the defense will be impaired
United States v. Lovasco431 U.S. 783 (1977)
• Were defendant’s rights violated where he established actual prejudice (loss of the testimony of a significant witness) and the government’s explanation for the 18-month delay from crime to arrest was desire for further investigation notwithstanding the presence of sufficient evidence to support a charge at an earlier date?
Speedy Trial Act
18 U.S.C. 3161-3174
• Establishes specific time limits within which the trial and certain other steps must commence in federal prosecution
• “Excludable” delays justifying non-compliance with time limits
