Escolar Documentos
Profissional Documentos
Cultura Documentos
The exclusionary rule involves excluding otherwise admissible evidence because it was obtained in
violation of an individuals 4th, 5th, 6th, or 14th amendment rights.
a.
The exclusionary rule applies not only to evidence obtained as a direct result of a constitutional
violation, but also to evidence indirectly derived from the violation.
b.
There are limits to this chain of causation - see exceptions to the exclusionary rule.
II.
The most prominent and frequently invoked exclusionary rule bars evidence secured as a result of
unreasonable searches and seizures.
III.
The exclusionary rules are the sanctions or remedies that are imposed on the government (prosecution)
when there has been a constitutional violation by a government officer.
a.
It is clear that deterrence has become the main rationale for the exclusionary rule.
V.
Other means of solving illegal intrusions into individual privacy have failed.
a.
Civil liability for police officers has failed. At best, the citizen can get very limited damages, and not
many lawyers want to bring these kinds of suits against police officers. Irregardless of the lawyers
willingness, most plaintiffs cannot afford to bring such suits.
b.
District Attorneys are also unwilling to bring suits against the police as a result of the close working
relationship they must maintain with the police in filing criminal charges.
c.
Uphoff thinks the best way to assure constitutional protections is to pay police officers more money
and provide them with better training and supervision.
THE THRESHOLD OF THE 4TH AMENDMENT: WHAT CONSTITUTES A 4TH AMENDMENT SEARCH? ARE ALL
GOVERNMENT INTRUSIONS SEARCHES?
I.
Limitation recognized in Katz - What a person knowingly exposes to the public, even in his own
home or office, is not subject to 4th Amendment protection. Protection is afforded only for what he
seeks to preserve as private.
III.
Rule: The 4th Amendment applies only to action by the government, not to private conduct by
private individuals. Thus, a search only really occurs when conducted by or at the behest of the
government.
b.
IV.
Rule: Misplaced reliance on the loyalty of another is not an expectation entitled to constitutional
protection.
V.
Rule: If the conduct and revelations of an agent operating without electronic equipment do not invade
the defendants constitutionally justifiable expectations of privacy, neither does a simultaneous
recording of the same conversation made by the agent or by others from transmissions received from
the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
a.
Related Rationale: The Court stated that it would be irrational to consider the activities and
reports of the police officer acting without a warrant to be reasonable under the 4th Amendment,
and then view the same officer acting with a recorder or transmitter to be engaging in
unreasonable activity under the 4th.
b. Assumption of Risk Rationale: One contemplating illegal activities must realize and risk that his
companions may be reporting to the police. Such information is accurate and relevant to the
prosecution, and the defendant does not have a justifiable expectation of privacy.
VI.
Hoffa v. United States (1966) - Similar to White, the Court held that where an informant reported his
conversation to government agents, this was not a violation of the 4th Amendment.
VII.
Open Fields Doctrine: Permits police officers to enter and search an open field without a warrant,
as an individual has no reasonable expectation of privacy in such places.
A.
An individual may not legitimately demand privacy for activities conducted outdoors in open
fields, except in the area immediately surrounding the home.
B.
There is no societal interest in protecting the privacy in open fields, as such areas are typically
accessible to the public.
I.
II.
The special protection afforded by the 4th Amendment to people in their persons, houses,
papers, and effects is not intended to cover open fields.
K Determination: Did the police search in open fields or in the curtilage surrounding
the defendants home? Does the defendant have a reasonable expectation of privacy in
the search area?
iii. Exception: An individual does have a reasonable expectation of privacy in the area
immediately surrounding the home (curtilage). Such area is considered an extension of
the home itself, although it is subject to less protection than the home itself.
1.
Holding: Where the observations take place within public navigable airspace in a physically nonintrusive manner, this is not an unreasonable search.
I.
ii. Rule in relation to Oliver: Even if the landowner is within fenced curtilage, not all
reasonable expectations of privacy will be honored.
iii. Possible Exception: If the police were to conduct aerial surveillance from a lower
ceiling, this might be classified as a search of the area. The Court would then have to
determine whether this search was reasonable.
B.
2.
The flight of the police was within the legal parameters of the FAA (400 ft), did
not interfere with the normal use of the greenhouse, and did not reveal any
intimate details connected with the use of the defendants home.
3.
Similarly, the Court has determined that thermal imaging of a defendants property is
not a search - the heat was emitting from the house, and the thermal imaging was nonintrusive, gaining only limited information.
Issue: Whether a passenger on public transportation has a reasonable expectation of privacy for his
belongings.
a.
X.
The routine nature of air travel rendered his expectation of privacy unjustified.
The Court has determined that a dog sniff of luggage is not a search for purposes of the 4th
Amendment.
I.
IX.
1.
Holding: The Court applied the Harlan test, and found that this was an unreasonable search under
the 4th Amendment.
I.
The average passenger does not expect that other passengers or employees will feel their
belongings in an exploratory manner. Thus, the passenger has a subjective expectation of
privacy.
II.
Holding: The Court held that trash abandoned at the curb was not covered by the 4th Amendment,
because the owner had no reasonable expectation of privacy.
A.
The defendants public exposure of the trash forfeits any reasonable expectation of privacy he has
in the contents, and
B.
Once the trash is conveyed to third-party collectors, the homeowner assumes the risk that they
will turn the bags over to the police.
C.
Respondents exposed their garbage to the public sufficiently to defeat their claim to 4th
Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of
a public street are readily accessible to animals, children, scavengers, snoops, and other members
of the public. Moreover, respondents placed their refuse at the curb for the express purpose of
conveying it to a third party who might himself have sorted through the trash or permitted others,
such as the police, to do so.
II.
A student has a reasonable expectation of privacy in the public school setting. See New
Jersey v. T.L.O. (1985).
III.
K Factors: In analyzing the issue of whether a search implicating the 4th Amendment
has occurred, attention must be paid both to the setting observed and the vantage point
from which the observation is made.
1.
e.
II.
XI.
Did the defendant voluntarily disclose information to a third party who was
cooperating the police? If so, this decreases the reasonableness of the expectation of
privacy. (White)
Did the defendant fail to take precautions to safeguard privacy and/or public
disclosure of his activities? Is so, this decreases the likelihood that the expectation of
privacy was reasonable.
Introduction: A constitutional violation does not inevitably lead to the permanent suppression of
all evidence discovered, as the Supreme Court has developed a number of doctrines that restrict
the scope of exclusion. This is primarily a result of the Burger Court.
b. The Standing Rule: 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.
I.
II.
III.
C.
Example: When A and B are having a conversation and the government illegally intercepts the
conversation, C cannot exclude the conversation from evidence, even if it implicates him in a
crime, because he has no standing to challenge such introduction. Conversely, if A or B were
implicated in the crime, either one would have standing to challenge the introduction of the
evidence.
I.
II.
Cs 4th Amendment rights have not been violated by an unreasonable search and seizure.
A and B were the ones whose personal rights were violated, as they were the actual
parties to the conversation.
1.
XII.
Rule: Ownership of property seized as a result of a search does not, by itself, entitle an individual to
challenge the search (not a dispositive fact).
I.
II.
XIII.
The defendant has no reasonable expectation of privacy in the place searched (the purse),
and thus, his rights were not implicated in the search.
The Court emphasized the following facts in reaching this conclusion:
1.
The defendant had known his companion for only a few days at the time of the
sudden bailment.
2.
He had never sought or received access to the purse before the incident.
3.
4.
Rule (Simmons): A defendants admissions at a suppression hearing could not be used as substantive
proof of guilt at a subsequent trial.
A.
XIV.
Rule: In order to claim the protection of the 4th Amendment, a defendant must
demonstrate that he personally had an expectation of privacy in the place
searched, and that his expectation was reasonable (i.e., one which has a source
outside the 4th Amendment, either by reference to concepts of real or personal
property or to understandings that are recognized and permitted by society).
This helped do away with the bind that a defendant would put himself in if he claimed ownership
of seized property to establish standing which statement could later be used against him at trial
to establish guilt.
Rule: In general, an overnight guest has a legitimate expectation of privacy in his hosts home, which
entitles the guest to object to a warrantless entry to arrest him.
A.
Because society recognizes that a houseguest has a legitimate expectation of privacy in his hosts
home, an overnight guest is entitled to a legitimate expectation of privacy despite the fact that he
has no legal interest in the premises and does not have the legal authority to determine who may or
may not enter the household.
b. Compare: Although an overnight guest in a home may claim the protection of the 4th Amendment,
one who is merely present with the consent of the owner may not.
c.
1.
The majority said that this case was somewhere in between legitimately on the
premises and the overnight guests in Olsen, who were afforded standing.
2.
Because of the purely commercial nature of the transaction here, the relatively
short period of time on the premises, and the lack of any previous connection
with the apartment or its owner, the defendants were denied standing.
3.
Rule: Lacking a possessory interest in, or a close connection to the place searched, defendants will
not be permitted to pursue a claim of unconstitutional search or seizure.
The determination of the requisite level of cause necessary to justify a search or seizure represents an
effort to balance the interest of effective law enforcement on the one hand and individual liberty on
the other.
a.
Probable cause is required for full-scale intrusions, including searches, seizures, and arrests.
i. Note: Even though most searches and arrests occur without a warrant, the law
enforcement officers still must have probable cause.
A particular individual
2.
iii. Probable Cause to SEARCH exists if the facts and circumstances within the officers
knowledge, and of which he has reasonably trustworthy information, are sufficient in
themselves to warrant a man of reasonable caution in the belief that an item subject to
seizure will be found in the place to be searched. In essence, probable cause to search an
area demands that there be a certain quantum of likelihood that:
IV.
1.
2.
is presently
3.
There is a staleness problem with regard to search warrants< Because items relating to
crimes are often transportable, establishment of probable cause to search requires a
showing that the items sought are presently at the place to be searched.
1.
2.
K Inquiry: How likely is it that the items will still be in the place to be
searched?
A.
c.
Hearsay and Informants: Special problems arise when the information was not acquired firsthand by the officer or other individual who relayed the information to the magistrate in
determining probable cause.
I.
Aguilar-Spinelli Test: Establishes the structure for evaluating probable cause based on
information supplied to the police by a confidential informant 1.
Basis for Knowledge: What are the underlying circumstances about the
information given by an informant that suggests that he has reached an accurate
conclusion about the story he is reporting?
A.
B.
c.
2.
B.
This only comes into play when there is an anonymous tipster - more
difficult to credit this type of information. Where a tip comes from an
anonymous tipster, the police must independently probe into the
situation to determine the reliability of the information.
I.
C.
Ex-con informants are typically not considered reliable until they prove
their reliability over time.
D.
3.
K: Both prongs of the test are important, as its not only important that we are
getting information from a particular source. We also want to know how this
person got the information and whether he is a credible person. See Spinelli v.
United States (1969).
4.
Although this test was later overruled by Illinois v. Gates, Uphoff thinks this
test is best for providing guidance to magistrates in determining whether
probable cause exists.
ii. Holding: The Court held that there was probable cause, and replaced the two-part
Aguilar-Spinelli test with a totality of the circumstances test for probable cause.
III.
1.
The two prongs of the Aguilar-Spinelli test are collapsed in the totality test,
and treated as interrelated.
2.
3.
The Court suggested that if a particular informant is known for the unusual
reliability of his prediction of certain types of criminal activities in a locality, his
failure, in a particular case, to thoroughly set forth the basis of his knowledge
surely should not serve as an absolute bar to a finding of probable cause based
on his tip.
4.
The revised standard must be met whether there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
5.
This is not a clear standard to apply, but depends on the facts and circumstances
of each particular case.
2.
II.
Several states have adhered to the traditional 2-prong test in interpreting their
own constitutional provisions regarding searches and seizures.
Rule: Where an officer has probable cause justifying a particular intrusion, the fact that the officer may
have acted for ulterior reasons is irrelevant.
A.
The legality of the search is determined solely by the existence of probable cause for the stop.
B.
If the circumstances, viewed objectively, justify the police action, the stop is legitimate.
C.
d. Rule: Where the police order someone to take something out of his pocket, and he refuses, there
must be probable cause independent of the exercise of privacy to search and/or seize.
UNREASONABLENESS & THE WARRANT REQUIREMENT
I.
B.
There must be presented to the magistrate an adequate showing of probable cause (either to
search or to arrest) supported by oath or affirmation. This is usually in the form of a sworn
affidavit from a police officer.
C.
The warrant must describe specifically and accurately the place to be searched and the items
or persons to be seized.
I.
The officer with a search warrant can, with reasonable effort, ascertain the identity of the
place to be searched.
II.
This standard requires that nothing be left to the discretion of the officers executing the
warrant.
1.
II.
This protects the citizen against the unilateral action of the overly zealous law
enforcement officer.
The Warrant Requirement and Searches of Persons, Homes, Papers, and Effects
a.
Per Se Rule: The right to privacy in the home necessitates a warrant, unless the case falls into one
of the clearly defined exceptions (later). This is true regardless of whether there is actual probable
cause.
i. Rule: If the initial search violates the 4th Amendment, it will taint any subsequent search
conducted during the same encounter.
ii. Exceptions to the rule are numerous, so there is no longer much of a rule left at all.
III.
1.
The common law that predated the 4th Amendment tolerated warrantless public
arrests of felons.
iii. Rule: A search or arrest warrant is needed to enter a dwelling to arrest a felon, because
the entry is a search that triggers the privacy rationales that underlie the search warrant
requirement.
b. Rule: Even if the court found that Atwater was illegally arrested, this does not mean that the case
would be dismissed. Rather, only the effects of the illegal arrest (i.e., seized evidence) would be
subject to suppression as the products of an illegal arrest.
The Issuance, Content, and Execution of Warrants - The Particularity Requirement
I.
In order for a search warrant to be issued it must describe with particularity the items to be searched
and seized.
a.
II.
III.
Timing of Warrants Preference for day-time searches, as the police and magistrate must specifically
provide for a nighttime search in the warrant form.
A.
Searches during the day are less intrusive to the person who is subject to the search, and less risky
for the police conducting the search.
B.
There must be a specific rationale for issuing a nighttime search stated when procuring the
warrant. This is because it is thought to be more of a constitutional violation to search at night.
Scope of Search: The scope of the search (i.e., digging up the yard, using specific technology)
depends entirely on the item(s) for which the police are searching.
A.
IV.
The level of particularity required can depend on the complexity of the case.
V.
Rule: If the Court determines that a search warrant was overly broad, this is grounds to have the
warrant stricken. If any evidence is seized pursuant to such warrant, the defendant has grounds to
suppress the evidence.
Knock-and-Announce Rule: The police must know and announce their presence before entering
the place to be searched, UNLESS there is a reasonable showing that such action would harm the
investigation or be dangerous or futile. This is a determination to be made by the lower courts
(finding of fact).
I.
In this case, the Court held that the common law knock and announce rule forms a part
of the reasonableness inquiry (in assessing the reasonableness of the search or seizure)
under the 4th Amendment.
II.
Richards Rule: In felony drug cases, there is no categorical exception to the knock
and announce rule The Court said that you have to make a reasonable showing on a case
by case basis. However, in many cases where guns and drugs are involved, the knock
and announce rule will be dispensed with.
Holding: The search was upheld despite the ambiguity in the warrant and the officers mistake in
executing it. The Court held that this mistake did not violate the particularity requirement of the 4 th
Amendment.
1.
The warrant must be analyzed based on the information known at the time the
warrant is issued. The subsequent discovery that the warrant was flawed will not
retroactively invalidate the warrant.
2.
The mistake made by the officers in executing the warrant was objectively
understandable and reasonable.
3.
The Court recognized the need to allow some latitude for honest mistakes that
are made by officers in the dangerous and difficult process of making arrests and
executing search warrants.
VI.
Rule: If the police are standing on your doorstep, and look inside and see incriminating evidence, they
cannot just walk in and seize it. They are required to go obtain a warrant from a magistrate.
VII.
Rule: A warrant will be voided if the party who is seeking the invalidation proves by a
preponderance of the evidence that -
II.
1.
2.
The false statement was included knowingly and intentionally or with reckless
disregard for the truth, and
3.
With the false statement excised, the remaining information does not support a
finding of probable cause.
If the defendant can make a showing of the first two elements, he is entitled to a full
evidentiary hearing.
1.
In the event that the allegation of perjury is established, the affidavits remaining
content is examined to see if it can establish probable cause standing without the
perjured statements.
2.
If probable cause is still found, absent the false statement, the evidence can be
used. If not, the search warrant must be voided, and the fruits of the search
excluded from evidence.
II.
Introduction: There are 3 basic questions regarding the exceptions to the warrant requirement A.
What are the characteristics common to cases in this category that justify circumvention of the
warrant requirement?
B.
C.
D.
General Rule: Because a search without a warrant is presumptively unreasonable, the government
has the burden of showing that the search falls within an exception to the general warrant rule.
General Rule: This exception permits the search of the person and the area immediately
surrounding the subject of the arrest.
I.
The authority to search incident to arrest has only been recognized in situations of
custodial arrest, as the rationale for the exception is closely tied to the fact of custody
II.
Probable cause to search is not necessary under this exception, as the search is justified
by the exigencies of the situation.
B.
General Rule: The arrest must precede the search, because it is the arrest that justifies the search.
C.
General Rule: A search incident to arrest is limited to (1) the person of the arrestee, (2) the area
within the immediate control of the arrestee, and (3) for arrests within dwellings, the areas
immediately adjacent to the place of arrest.
D.
The underlying arrest must be lawful (based on probable cause to believe the subject has
committed the crime), AND
II.
If the arrest is made in a private building, the arrest warrant must be valid.
III.
In the case of a misdemeanor committed outside the presence of the officer, an arrest
warrant may also be necessary.
IV.
Bright-line rule that we allow officers to search the person and the area within the
immediate control of the arrestee.
E.
The showing needed to conduct a search incident to arrest - The police need only establish that
they lawfully arrested a suspect and took him into custody.
F.
Rule: The officers can seize and open any items found within the immediate control of the
arrestee.
I.
G.
Rule: The Court also reasoned that the officers subjective fear (or lack of fear) that the defendant
might have a weapon plays no role in this determination.
I.
H.
Bottom Line: Police have the ability to arrest anyone for a minor traffic violation and
once arrested, the arrestee is subject to a full custodial search.
Holding: Neither (1) the need to disarm the suspect in order to take him into custody nor (2) the
need to preserve evidence for later use at trial justifies a full search incident to a traffic citation.
I.
II.
III.
I.
Rationale: Once you are subject to custodial arrest, the additional privacy violation of
allowing the police to go through the items on your person is not sufficiently great such
that we are going to interfere with the officers ability to conduct a full search.
Rationale: Once a driver is stopped for speeding and issued a citation, all the evidence
necessary to prosecute that offense has been obtained. No further evidence of speeding is
going to be found on the person or in the car.
Critique: If this decision is given full weight, officers could usurp this limitation on
searches by always choosing to arrest the driver.
If the officer believes the driver is engaged in other criminal activities, the officer can
arrest the driver and conduct a search of the person, the car, and any containers in the car
(except the trunk). See NY v. Belton.
Holding/Rule: When a police officer has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile (but not the trunk). The police may also examine the contents of
any containers found within the passenger compartment, whether the container is open or closed.
1.
This rule applies even if the occupants have already been removed from the
vehicle. Articles within the relatively narrow compass of a passenger
compartment of a vehicle are generally within the area into which an arrestee
might reach in to grab a weapon or other evidence.
A.
B.
2.
Brennans Dissent: Brennan argues that the jacket was not within the
immediate control of the defendant, and under Chimel, not subject to search.
The crucial question under Chimel is not whether the arrestee could ever have
reached the area that was searched, but whether he could have reached it at the
time of arrest and search.
ii. Pennsylvania v. Mimms Rule (1977) - The police have the right to order you out of your
car when engaged in a legal stop. If you refuse to get out, this subjects you to an arrest.
iii. Hayes v. Florida Rule (1985) - Usually, taking someone to the station is an arrest, unless
the person agrees to go voluntarily.
iv. Rawlings v. Kentucky Rule (1980): A lawful arrest is a necessary predicate for a valid
search incident to arrest. The probable cause to arrest cannot be supplied by the search
alleged to be incident to that arrest. However, if an officer has probable cause to arrest,
she may conduct a valid search incident to arrest prior to formally taking the suspect
into custody.
v. Payton v. New York, 445 U.S. 573 (1980) -- Normally, an entry of a private dwelling
requires a search warrant. The privacy of the home is the quintessential interest protected
by the search warrant rule. Nevertheless, a partial exception to the search warrant rule
may apply when officers search a private dwelling in order to arrest a felon.
1.
The officers must have a valid arrest warrant for a felony. The warrant must be
based on probable cause and must meet the other requirements for a valid
warrant.
2.
The officers must also have probable cause to believe that the suspect is
presently in the home.
A.
3.
This showing does not have to be made before the magistrate when
securing the arrest warrant.
If both conditions are satisfied, the police may enter the home to make the arrest.
No search warrant is needed to invade the home privacy interest of the alleged
felon.
A.
4.
Scope of the Exception: Officers may enter the residence of the suspected felon
to arrest her. They may only look in places where the alleged felon could be
found. Spaces too small to harbor a person are outside the scope. Moreover,
once the arrestee is found or it is determined that she is not present, the officers
must terminate their search.
5.
Note: In 99% of cases, the police would nevertheless go into the house and seize
Payton (wanted for murder). Under New York v. Harrison, he can still be
prosecuted so long as there is independent evidence obtained independently of
the illegal arrest. The only evidence that would be suppressed is the evidence
obtained at the time of the illegal arrest.
vi. Steagald v. United States, 451 U.S. 204 (1981) - Entries into the dwellings of
innocent third parties not included in the partial exception
1.
Facts: The police entered the home of the Steagalds to arrest Lyons, someone
who did not live in the home. The police did not have an arrest warrant to arrest
Lyons.
2.
3.
VII.
Note on Standing: A felon who is arrested in a third partys home does not have
standing to challenge the constitutionality of the search. The arrestee must
demonstrate that her own constitutional rights were violated, which requires
both a showing that the entry of the home infringed upon her own rights and that
it did so unreasonably.
A.
To prove that her own constitutional rights were infringed upon, she
must show she had a privacy interest in the home that was invaded by
the entry.
B.
The felon cannot rest her challenge on the invasion of the third party
home dwellers constitutional privacy rights.
Shared Dwellings: In some cases, both the felon and an innocent party have privacy
interests in a home. Payton holds that the police can enter the dwelling of a felon with a
valid arrest warrant. However, Steagald holds that the police must procure a search
warrant to enter the home of an innocent party to arrest a suspected felon. It is arguable
that a person who is sharing a dwelling with a suspected felon is not wholly innocent, and
this act diminishes the innocent partys constitutional protection. Thus, it would be
reasonable to search the third partys home on the basis of a felony arrest warrant plus
probable cause to believe that the suspect is in the home.
viii. United States v. Watson Rule (above): The police do not need an arrest warrant if the
suspect is arrested in public.
1.
Applicability to Hotel Rooms - The police can arrest a suspected felon outside
of his hotel room without a warrant. If the defendant was suspected of
committing a misdemeanor outside of the presence of the police, the police
would need a warrant. In reality, the police would likely try to get the defendant
to come out of the hotel room and then illegally arrest him. Any evidence
obtained at that time would be suppressed, but he could still be prosecuted.
ix. United States v. Santana, 427 U.S. 38 (1975): A suspected felon who stands precisely on
the threshold of the front door of her home is subject to a warrantless arrest, as this is
considered public area. She was not merely visible to the public, but was as exposed
to public view, speech, hearing, and touch as if she had been standing completely outside
her house.
X.
J.
Curtilage remains an unresolved question, and will be dependent on the facts and
circumstances of each case. Courts have split on whether the police need an arrest
warrant to arrest a suspected felon in the curtilage of his home.
Introduction: Where exigencies of the situation compel the police to act immediately,
risk imminent danger to themselves or others, risk the destruction of evidence, or the
escape of a suspect, it would be unreasonable to require them to resort to the warrant
process.
1.
2.
The prerequisites for a warrantless search or arrest under this exception are A.
B.
Objective Standard: The police must be faced with circumstances that would
cause a reasonable person to believe that the entry was necessary to prevent
harm to the officers or other persons, the destruction of relevant evidence, the
The scope of the search is strictly limited to the exigencies of the situation.
4.
B.
C.
Fleeing suspects.
ii. Warden v. Hayden, 387 U.S. 294 (1967) - Hot Pursuit Doctrine
1.
Facts: Two cab drivers who had witnessed an armed robbery followed the
suspect to a particular house and summoned the police. The officers arrived
within minutes, entered the house and proceeded to search for the robber. While
looking for him, the police discovered and seized evidence connected to the
robbery as well as two guns. In the process, Hayden was located and arrested,
and the items seized were later offered in evidence.
2.
Holding: The items were properly admissible in evidence, because the entry
into the home, although warrantless, was reasonable under the exigent
circumstances to prevent the escape of a fleeing suspect.
A.
Rule: Once inside, the officers could lawfully search for the suspect
and seize any items found in plain view.
B.
The officers needed probable cause to believe that the defendant had
committed the crime AND that he was in the particular dwelling.
C.
3.
To the extent there is any risk the suspect has been alerted that
the police are looking for him, there is an increased
justification for the hot pursuit doctrine due to increased
risk to the police and the risk that the suspect will flee.
Scope of the Search: Although the search in Chimel was restricted to the area
where the suspect could reach or grab, the scope of the search in a hot pursuit
situation is broader. The police can look where they reasonably believe a person
could be hiding as well as anywhere a weapon could be hidden.
A.
Rule: When the exigencies of the situation subside, the police cannot
continue the search.
Facts: The officers conducted a warrantless entry and search of the suspects
home after they had arrested him outside of his home. The police entered and
searched the home based on a belief that persons inside the home would destroy
narcotics believed to be in the house.
2.
Holding: The Court held that the officers conduct in this case was
unreasonable.
A.
Rule: The exigency in any given situation must arise in the natural
course of things and cannot be the result of deliberate police action.
The exigency must be supported by clearly defined indicators of
exigency that are not subject to police manipulation or abuse.
I.
B.
Under the circumstances in this case, the police could easily have
secured the residence while other officers went to get a warrant.
iv. Welsh v. Wisconsin, 466 U.S. 740 (1984) - The government relied on exigent
circumstances to justify a warrantless nighttime entry of a home to arrest a resident.
Welsh had been seen driving erratically earlier in the night, and he had swerved off the
road and into a field. Welsh left on foot for home, and the police later investigated the car.
They discovered that it was registered to Welsh, and went to his home to arrest him
without procuring a warrant.
1.
K.
Holding: The Court disallowed the exigent circumstances exception in this case,
as the application of the exigent circumstances exception in the context of a
home entry should rarely be sanctioned when there is probable cause to believe
that only a minor offense . . . has been committed.
A.
The Court rejected the hot pursuit rationale because there was no
immediate and continuous pursuit from the scene of the crime.
B.
Introduction: This exception has led to the highest number of Supreme Court cases, as it
is more confusing than other exceptions.
1.
Prerequisite Rule: The police must have probable cause to engage in a search
of the vehicle. The only possible exception is where the car is parked on the
owners own curtilage.
A.
B.
To invoke the exception, the vehicle must be readily mobile by the turn
of an ignition key. If a vehicle is disabled in some way and not readily
mobile, there is insufficient need for warrantless action.
I.
2.
Rule: The car can be searched at the scene or at the station. Under Johns, the
search at the station does not have to occur expeditiously.
3.
Rule: After Acavedo, it is clear that probable cause to search justifies a search of
either a car or a container in the car.
4.
ii. Carroll v. United States - A warrantless search could be conducted of a vehicle if the
officers had probable cause to believe there was contraband or other evidence of criminal
activity in the vehicle. This was premised on the concern about mobility of vehicles, as it
was not likely the vehicle would be in the same place after the police obtained a warrant.
iii. Chambers v. Maroney, 399 U.S. 42 (1970)
1.
Facts: After a description of the robbery suspects car and the robbers was
broadcast over the police radio, the police saw a station wagon meeting the
description. The police stopped the vehicle. The occupants were arrested and the
car was driven to the police station and subsequently searched.
2.
Holding: The Court held that the warrantless search of the vehicle at the station
was legitimate and not a violation of the 4th Amendment.
3.
4.
A.
Because the police had probable cause to believe that the car contained
evidence of a recent robbery, and thus, could have been lawfully
searched when stopped (Carroll), it was constitutionally permissible to
conduct the delayed search as well.
B.
B.
Change from Carroll - The police no longer have to make a showing that they
needed to act quickly. It is now clear that the police can conduct a search at the
scene or at the station house.
A.
iv. Coolidge v. New Hampshire, 403 U.S. 443 (1971) Rule: If a search of a vehicle is
conducted on private property, the police need a warrant.
1.
Rule: This exception exempts from the warrant requirement vehicles that are on
the highway. It also includes vehicles found stationary in a public place, and
vehicles found stationary on the private property of someone other than the
vehicle owner.
2.
Exception: This exception may not apply to vehicles that are found stationary
on private property (or curtilage of the vehicle owner. However, later cases have
cast doubt on the current validity of the Coolidge rule. See Kilgore and Carney
(below).
2.
Holding: The Court held that the search was not in violation of the 4th
Amendment, as there was probable cause to search the truck, the truck was
vi. California v. Carney, 471 U.S. 386 (1985) - Officers engaged in a warrantless search of a
mobile home after securing probable cause that the owner was giving marijuana to youths
for sex.
1.
Holding: The Court allowed the search as consistent with the 4th Amendment.
Here, the court focused on the individuals reduced expectation of privacy in any
vehicle.
2.
Rule: If a car is readily mobile and probable cause exists to believe that it
contains contraband, the 4th Amendment permits the police to search the vehicle
without a warrant.
A.
VII.
Scope of the Permissible Search: The scope of a search under this exception is limited
only by the nature of the probable cause to search.
1.
2.
Areas of the vehicle to which the probable cause extends - This exception
allows officers to search any part of the vehicle that there is probable cause to
search. California v. Acevedo (1991).
A.
B.
Separate containers within the vehicle - Officers are also permitted to search
every separate container within the vehicle that could contain the object of their
search. California v. Acevedo. There is authority to search such a container both
when officers have probable cause to search an entire vehicle and when they
have probable cause to search only a container that is inside the vehicle.
A.
3.
Location of the search: Officers may search a vehicle at the place where it is
stopped or found. They are also permitted to take the automobile to the police
station (or another place of impoundment) and conduct a warrantless search
there. Texas v. White (1975), Chambers v. Maroney (1970).
4.
II.
Introduction: These searches are not conducted to investigate or detect crime, but rather,
to inventory - determine and document the contents of - a particular area. Warrantless
inventories are reasonable because they protect property interests of vehicle owners or
arrestees, protect officials against false or true claims of lost or stolen property, and
protect the police and those in jail against dangerous instrumentalities.
Inventory Searches of Vehicles: Under certain conditions, warrantless inventory
searches of vehicles without probable cause are reasonable.
1.
II.
III.
1.
2.
B.
2.
Scope of a valid vehicle inventory: Standard police procedures are one source
of limitation on the scope of a proper inventory. The more significant question is
what independent restrictions the Constitution imposes. The question should be
answered by referring to the justifications for warrantless inventories.
A.
B.
II.
III.
III.
A.
B.
C.
2.
B.
C.
M.
Consent Searches
I.
Introduction: If a person with authority validly consents, the 4th Amendment allows an
officer to conduct a search without a search warrant and without probable cause. Even if
the person giving consent lacks authority, a warrantless search may still be reasonable.
II.
Showing Necessary for a Consent Search: To invoke the consent exception, the
government must demonstrate a voluntary consent by a person with common authority.
1.
Actual Consent: A consent search requires evidence that consent was actually
given. Explicit permission to search is not required. Rather, a persons actions
can provide a basis for inferring a grant of such permission.
A.
2.
3.
II.
B.
Facts that evince coercion (or lack thereof) are relevant - for example,
the nature of the law enforcement conduct preceding the consent and
the setting in which it occurred are relevant. Likewise, facts that bear
on a persons strength of will or vulnerability are also relevant - for
example, native intelligence, educational level, maturity, prior
experience with law enforcement, intoxication, and knowledge of the
right to refuse consent.
C.
D.
e.
Bumper v. North Carolina: Where the police falsely claim that they
have a warrant, and this prompts the occupant to let them in, consent is
invalid.
4.
Advice to Seized Individuals: The 4th Amendment does not require that a
lawfully seized individual be advised that he is free to go before consent can
be found voluntary. See Ohio v. Robinette. Consent that is voluntarily given is
not rendered invalid by the failure to provide such advice. This is the case
whether the lawful seizure is continuing or has been completed at the time the
consent is given.
5.
Rule: A person who uses and has access to some spaces does not have
authority to consent to the search of related or nearby, but distinct,
spaces.
I.
B.
Rule: There are some private spaces that are treated as unitary for
purposes of authority to consent. For such spaces, whenever a person
uses and has access to any part of the unitary space, he gains authority
to consent to a search of the entire space.
i. Frazier v. Cupp Example: A young man had permission to
possess his cousins duffel bag and to use some compartments
in it. The Court held that he had authority to consent to the
search of the entire duffel bag as a result.
III.
Scope of a Valid Consent Search: If a person with authority has given valid consent, an
officer is entitled to search any area to which the consent extends. Because consent
searches are reasonable only because officers have secured permission, the scope of a
consent search cannot be broader than the scope of the permission granted.
1.
IV.
If a consenting party expressly limits the allowable search, officers must abide
by that limitation. However, the consenter may not be explicit about the scope of
the permission she intends to grant. In that case, the standard for measuring the
scope of a suspects consent is that of objective reasonableness - what a
reasonable person would have understood by the exchange between the officer
and the person giving consent. See Florida v. Jimeno.
A.
B.
C.
The Apparent Authority Doctrine: In some cases, officers search based on consent
given by a person who, in fact, does not have common authority. In those cases, the
searches do not fall within the consent exception. Because the consenter lacks authority,
the consent is not constitutionally valid.
1.
N.
2.
3.
Even in cases where a person affirmatively asserts that she has authority to
consent, it may not be reasonable to believe that assertion. The question is
always whether, in the particular circumstances, a belief in authority is
objectively reasonable.
4.
II.
III.
IV.
Introduction: The plain view doctrine does not actually authorize a search of any sort.
Rather, it merely allows officers to seize effects in certain circumstances without first
obtaining a warrant. See Horton v. California. The circumstances that justify a
warrantless seizure are:
1.
Lawful arrival at the place from which the object can be plainly viewed,
2.
3.
4.
Rationale: The police should not be put to the inconvenience of leaving the
place of the original search to procure a specified warrant to seize contraband or
evidence that is immediately apparent as criminal in nature.
Lawful Arrival at the Place from which the Object can be Plainly Viewed: If officers
violate the 4th Amendment in arriving at the place that enables them to view an object, the
violation will taint a subsequent seizure. The lawful arrival criterion reflects the
principle that an otherwise lawful seizure will be tainted if it is the product of a prior
illegal search.
Lawful Access to the Object Seized: Officers must justify their presence in the place
where they seize the object.
1.
If the item is in a public place, no grounds are needed to justify access because
the 4th Amendment does not restrict officers access to public places.
2.
B.
In Hicks, the police had to lift stereo components to read the serial numbers on
the equipment to determine whether the stereo was stolen. The Court held that
this action was beyond the plain view doctrine, even though the inspection was
cursory.
V.
III.
A.
B.
Compare: If the serial numbers had been in plain view, there would be
no constitutional violation.
2.
This reflects a notion that the probable cause to seize the object cannot be the
product of a search or seizure undertaken to investigate the nature of the object.
Officers who have some level of suspicion about an object in plain view, but
lack probable cause, ordinarily may not conduct a search or seizure for the
purpose of determining the character of that object. If they do so, and their
search or seizure generates probable cause that leads them to seize the object,
the seizure cannot be justified by the plain view doctrine because it is tainted by
the preceding illegal search or seizure.
3.
United States v. Place: In this case, the police temporarily seized a suitcase in
public to bring a drug dog in to sniff for drugs. The Court allowed this action,
which suggests that the police can make a temporary seizure based on
reasonable suspicion if the search takes place in public, where citizens have a
decreased expectation of privacy.
2.
Current Rule: Even though officers have probable cause to seize an item in
advance and have time and opportunity to secure a search warrant for that item,
they do not have to obtain a warrant. So long as the other requirements for a
plain view seizure are satisfied, they may reasonably seize the item.
II.
The Court determined that stop and frisk still has 4th Amendment implications,
because a stop is a seizure of the person, and a frisk does qualify as a
search.
A.
2.
Neither probable cause nor a warrant is necessary for a stop and frisk. The
officer need only have a reasonable suspicion, which is a lower showing than
probable cause. However, the officer must have more than an unarticulable
hunch.
A.
The Court would allow a more full-blown search only upon a showing
of probable cause.
3.
TEST: When an officer subjects a suspected criminal to a stop and frisk, the
officer needs specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion. The officer must
demonstrate facts that lead him to reasonably conclude, in light of his
experience, that criminal activity may be afoot and that the person with whom
he is dealing may be armed and presently dangerous.
4.
The Court applied the balancing approach in Terry in articulating this test A.
On one side of the balance is the nature and extent of the intrusion on
the individual subjected to the detention and frisk, and the extent of the
individuals interest in liberty and privacy.
B.
C.
The Court must decide, based on the balance, whether the search and
seizure are reasonable.
D.
iii. Terry v. Ohio (1968): Officer McFaddens attention was drawn to two men on a
Cleveland street corner that appeared to the experienced officer to be casing a store for
a robbery. They walked back and forth roughly 24 times, pausing to stare in the store
window and confer with each other. Acting on his suspicions, McFadden approached the
men and asked them to identify themselves. When they mumbled something in response,
McFadden patted the men down, felt a pistol on each man, and removed the guns. The
men were then placed under arrest for possession of concealed weapons. Prior to the trial,
the defendants moved to suppress the guns as the product of an unreasonable search.
1.
2.
3.
Rule: If the police cannot articulate what crime it is that the individuals
were about to commit, Terry is inapplicable.
B.
If the officer sees something that is suspicious, and has observed these
individuals for a reasonable time period, based on his experience, it
may seem clear that they are about to engage in criminal activity. Based
on these observations, it would be impossible and impracticable for the
officer to stop surveillance in an attempt to summon other officers and
obtain a warrant.
A.
B.
The Court stated that it is reasonable to allow the police, if they have a
reasonable, articulable belief that the suspect is about to engage in
criminal activity, and if they reasonably believe that the individual is
presently armed and dangerous, to allow some prompt and brief action
to dispel with the officers immediate concern.
C.
iv. Dunaway v. New York (1979) - The suspect in a stop and frisk was taken to the station
house and detained for extensive questioning. The Court held that this was the functional
equivalent of official arrest, and thus, the police needed probable cause for such action.
Reasonable suspicion is not adequate in such circumstances.
1.
B.
II.
The 4th Amendment regulates only encounters in which law enforcement officers seize
individuals. Not all personal intercourse between policemen and citizens involves
seizures of persons. Terry.
1.
2.
Because encounters that are not seizures are not governed by the 4th
Amendment, they can be undertaken for any reason or no reason at all - there is
no requirement that the government justify encounters as reasonable.
III.
A seizure requires that an officer act with the intent of terminating the freedom
of the individual.
Seizure by Physical Force: Any actual physical contact with a person will
qualify as physical force. Hodari D. Consequently, an officer satisfies the
physical force criterion whenever she merely touches a person with her hand,
another part of his person, or an object.
A.
II.
2.
II.
II.
C.
C.
1.
2.
Since Terry, the showing needed for a stop and frisk has been explained and described as
a reasonable suspicion. The reasonable suspicion needed to stop or detain a suspect is
different and distinct from that needed to conduct a frisk.
II.
In Illinois v. Wadlow (2000), a majority of the Court rejected the following per se rules 1.
2.
3.
4.
Rather, the Court stated that the proper test was to look at the totality of the
circumstances. Thus, if the stop occurs in a high crime area, this is only one
factor that the court should take into consideration.
A.
III.
In Alabama v. White (1990), the police received a tip that White would
be leaving a particular apartment at a particular time in a particular
Holding: The Court held that, because the police corroborated the
predictions of the caller, they were justified in stopping and detaining
the defendant outside of the motel. K: Police corroboration established
sufficient reliability to establish reasonable suspicion.
I.
2.
C.
D.
Such stops or detentions are also permissible in order to detect and apprehend
those who have engaged in past, completed crimes. In those situations, an officer
must possess a reasonable suspicion that an individual was involved in or is
wanted in connection with a completed felony. See United States v. Hensley.
A.
IV.
V.
To conduct a limited pat-down of outer clothing of a suspect for weapons frisk - an officer must have a reasonable suspicion that the suspect who is
being detained is armed and presently dangerous. See Minnesota v. Dickerson.
2.
Note: The authority to frisk does not follow automatically from the authority to
detain, but instead requires this independent showing of objective grounds for
believing that the suspect could pose a danger to the officer during a detention.
3.
Reasonable Suspicion - Probable cause is not required for a stop and frisk, but an
inchoate and unparticularized suspicion or hunch will not suffice. See United States v.
Sokolow. A reasonable suspicion is required - a level of likelihood somewhere in
between that engendered by a hunch and that required for probable cause.
1.
2.
3.
4.
D.
Conversely, the fact that factors may be set forth in a profile does not
somehow detract from their evidentiary significance as seen by a
trained agent. Thus, judges must not discount facts simply because they
appear in profiles.
B.
5.
Even though no single fact directly describes ongoing criminal activity, the
totality of the facts can still support a reasonable suspicion of criminal activity.
Sokolow. None of the individual facts relied on to establish a reasonable
suspicion need be inherently suspicious or indicative of criminal activity when
judged in isolation.
6.
Rule: The fact that a suspect walks away from the police or refuses to answer
the questions of a police officer cannot be used to gain a reasonable suspicion.
b.
C.
II.
2.
2.
B.
II.
III.
C.
3.
Duration and the movement of the suspect are relevant because they
increase the infringement on the suspects liberty. Other actions by
officers that intrude on or restrict a suspects liberty are also relevant
and can turn a detention into an arrest.
B.
C.
E.
II.
United States v. Place (1983): The police detained luggage which was
seized from an individual where the police had reasonable suspicion to
believe that there were narcotics in the luggage. The police seized the
luggage for a period of time to bring in dogs for a sniff test.
I.
II.
Rule: Reasonable suspicion does not give the police the right
to open the luggage - for that action, they need probable cause.
1.
2.
III.
In Arizona v. Hicks, the Court made clear that limited seizures of effects are not
always reasonable when officers have a reasonable suspicion that the effect is
somehow involved in criminality.
A.
B.
Allowable Scope of Seizures of Effects - The question here is what an officer can do
with an object that she has seized based on a reasonable suspicion. There is no bright-line
rule.
1.
2.
3.
B.
C.
B.
B.
B.
II.
C.
II.
III.
F.
For objects that have not been taken from the custody of the
person, the argument in favor of allowing officers to transport
them to other locations is even more compelling.
II.
iii. Sibron v. New York (1968): Officers watched Sibron converse with several known drug
addicts over an 8-hour period. After Sibron entered a coffee shop, the police approached
him and told him to come outside. Once they were outside, the officer told him you
know what I am after. When the man reached into his pocket, the officer thrust his hand
into the pocket and extracted packets of heroin.
1.
IV.
Holding: The Court concluded that the officer did not have reasonable grounds
to believe that the Sibron was armed and dangerous. Mere association with
drug addicts did not give rise to a reasonable fear of life or limb on the part of
the police officers. Thus, the Court held that it was unconstitutional for the
officer to stop and frisk Sibron. Furthermore, the Court noted that even if there
had been adequate grounds for detention and frisk, the search conducted by the
officer had exceeded the limited bounds of the pat-down authorized by Terry
(for weapons only).
Exception: Where it is impracticable for the officer to pursue the suspicion by remaining
on the outer surface of the clothing, she may intrude further.
A.
V.
If the officer feels a weapon during a proper frisk, it is reasonable to reach below the
surface of the suspects clothing to extract it.
VI.
If the officer determines that the suspect is not in possession of a weapon, the frisk must
end. Even if the officer has a reasonable suspicion that an object felt during a frisk is
contraband, the officer may not manipulate it with his fingers to determine its identity.
See Minnesota v. Dickerson.
VII.
Officers may also conduct a limited weapons search of vehicles based on a reasonable
suspicion that a suspect is dangerous and may gain immediate control of weapons from
the vehicle. See Michigan v. Long.
1.
Michigan v. Long (1983): Police saw a car swerve into a ditch and, after
stopping to investigate, made observations that the driver was intoxicated and
noticed that there was a large hunting knife on the floorboard of the car.
A.
B.
G.
2.
Rule: The suspect need not be inside the vehicle at the time of the search.
3.
4.
However, most scholars agree that this is another diminution of the 4th
Amendment, as the Court has provided for a wholesale search of the car where
less intrusive measures could be taken.
II.
Lawful Arrest - A lawful arrest requires probable cause to arrest, and possibly a
warrant.
2.
The arrest must occur in a home. Arrests outside of the home do not trigger the
protective sweep authorized by Buie.
3.
Officers must also have a reasonable, articulable suspicion that the house is
harboring a person posing a danger to those on the arrest scene.
A.
III.
IV.
B.
The sweep may not be a full search of the premises, but may extend
only to a cursory inspection of those places where a person may be
found. Thus, officers may not look in spaces too small to harbor a
person and may not continue to examine spaces after ascertaining that
no person is present.
C.
Balancing in other contexts: In certain situations, the Court has permitted otherwise
unconstitutional searches based on the special needs inherent in the situation after balancing the
governments and societys interest in the search against the individuals privacy and dignity
rights.
B.
Detention of Individuals Present During Searches of Premises: During the search of a place,
officers may have an interest in investigating the involvement of individuals present at the time by
detaining them.
i. Michigan v. Summers (1981) Rule: An officer is allowed to detain an occupant of
premises while she conducts a search of those premises pursuant to a valid warrant to
search for contraband.
II.
1.
2.
This doctrine does allow an officer to require a resident found outside his home
to enter and remain there during the duration of the search. While it is likely that
the authority to detain occupants does not extend to those found any substantial
distance from their homes, it is unclear where this boundary lies.
3.
4.
It is also uncertain whether the Summers rule would apply where the search
warrant merely authorized a search for evidence as opposed to contraband.
Accordingly, if a detention lasts longer than the time it takes for a proper search, it is
unreasonable.
1.
C.
There may be instances where a detention that lasts only as long as the search
could be found to be unreasonable. Perhaps if the premises were so extensive
that a proper search would take a very long time, a detention during that time
would be too prolonged. Likewise, if an individual had a special need to leave
the premises (i.e., for a doctors appointment or other meeting), a court might
find an otherwise reasonable detention to be unreasonable under the
circumstances
2.
D.
Holding: The frisk of the patrons in the tavern was unlawful. In this situation,
the government action and the fear of safety of the officers did not justify the
interference with personal liberty of the patrons of the bar.
A.
B.
Rationale: When police have a valid warrant for a search of the bar, why are the
other people in the bar not just receptacles where drugs could be hidden? Why
cant the police frisk Ybarra for drugs just as they can search drawers and other
places in the bar?
A.
B.
Drawers in the bar are different from an individuals pockets, as the 4th
Amendment protects the individuals privacy interests in his person.
C.
Just because there is probable cause to believe there are drugs in the bar
does not tell us anything about the particular patrons in the bar. There is
no probable cause to believe that his privacy interest should be violated
in a search for drugs in the bar.
D.
The majority also says that we are not going to jump to the categorical
assumption that because you are at a site where there are suspected
drugs, you also have drugs on your person or are a dangerous person.
criminal activity. In certain circumstances, seizures effected at traffic checkpoints are reasonable
even though officers possess no individualized suspicion with respect to the person seized. Such
random seizures at both permanent and temporary checkpoints can be constitutional.
i. Michigan Department of State Police v. Sitz (1990): In this case, the Court engaged in
the balancing test in the context of a fixed sobriety checkpoint.
1.
2.
Balancing Approach: The Court balanced the interference with the individuals
right to travel against the governments interest in stopping drunk driving.
A.
Here, the checkpoints were fixed at specific sites where there was
advance notice to drivers that the checkpoint was ahead.
B.
C.
Holding: The stop and temporary seizure of drivers in this case was held to be
constitutional due to the minimal intrusion on drivers as compared to the
weighty interest in stopping drunk driving.
A.
3.
Dissent: The dissent agreed that the government interest in stopping drunk
driving was important, but argued that there was no evidence that the
checkpoints were actually effective in stopping drunk driving.
A.
II.
ii. City of Indianapolis v. Edmond (2000) Rule: Checkpoints are not allowed to the extent
they are used to ferret out general crime. Rather, there must be a specific showing that the
checkpoint is being used to eliminate a specific evil, such as drunk driving or stopping
the entry of illegal aliens.
E.
Higher Standards of Reasonableness: Unlike the above situations, interest balancing can also
lead to the opposite conclusion - that a particular search or seizure may require more than
probable cause and a search warrant. In these situations, the balancing process can lead to
elevated standards of 4th Amendment reasonableness. The settings in which standards have been
elevated involve more serious intrusions on 4th Amendment privacy or liberty interests than those
occasioned by ordinary searches and seizures.
I.
2.
3.
B.
II.
III.
B.
C.
4.
II.
Deadly Force: Traditionally, deadly force has included more than force that
actually results in death. According to the MPC, deadly force is force which the
actor uses with the purpose of causing or which he knows to create a substantial
risk of causing death or serious bodily harm. Given the language of Garner, it
is likely that the restrictions on the use of force apply whenever an officer uses
deadly force, whether or not he actually inflicts harm.
Intrusions into the Human Body: A search inside a human body - drawing blood or
performing surgery - may be more intrusive than a normal search. Evaluation of the
intrusiveness of such a search must be done on a case-by-case basis, taking into account
the threats to privacy, dignity, and health interests. Searches of human bodies that prove
to be sufficiently more intrusive must satisfy higher than normal 4th Amendment
standards.
1.
2.
B.
C.
Schmerber v. State of California (1966): The Court determined that the drawing
of blood by medical authorities to determine the defendants blood alcohol
content was no more intrusive than an individual search. Because it was based
on probable cause (the defendant driver had just been involved in an accident)
plus the exigency created by the ongoing dissipation of the blood alcohol level,
the blood drawing was reasonable despite the lack of a warrant.
A.
B.
After balancing, the scales tipped in favor of the government, and the
intrusion was deemed significantly minor when weighed against the
government interest in obtaining the evidence.
C.
Note: A warrant would have been required if the objective had been to
determine whether a more enduring characteristic was present in the
persons blood, such as to determine his blood type or DNA makeup.
3.
V.
Winston v. Lee (1985): The government wanted a doctor to probe surgically for
a bullet though to be lodged beneath the skin of the defendant. In an adversarial
hearing, the government had shown ample probable cause to believe that the
bullet was present and that it would provide evidence of the suspects
involvement in an attempted robbery.
A.
Holding: The Court concluded that the medical risks, though not
extremely sever, were disputed and uncertain and that the harm to
privacy interest occasioned by drugging the man into a state of
unconsciousness and searching beneath his skin for evidence was
severe. Furthermore, the state could not demonstrate compelling need
for the evidence, because it already had substantial evidence of the
origin of the bullet. Thus, the proposed surgery was deemed
unreasonable.
B.
C.
Note: Not all surgeries require more than probable cause, as there are
some surgeries that could be performed if the government showed a
sufficiently compelling need for evidence, and the risk and intrusion for
the individual subjected to the surgery was minimal in comparison.
Problems with False Confessions: In most criminal cases, there is no hard evidence (i.e., DNA or
other forensic evidence), and the prosecution has to rely on eyewitness testimony and confessions.
Studies suggest that we cannot safely assume that everyone who confesses is guilty of committing
the crime to which they confessed.
I.
II.
B.
Research suggests that jurors place a lot of weight on confessions, which increases the
problem with false confessions and increased convictions of those who are actually
innocent.
Uphoff suggests that the best way to deal with these issues is to videotape any
interrogations and police interactions with suspects. Minnesota and Alabama, as well as
England, requires such practice. Through videotaping, protection is provided to both the
individual and the police.
Due Process Doctrine: The Due Process Clause prohibits confessions coerced by government
officials. The determination of which confessions violate due process must be made based on the
totality of the relevant circumstances - including both the external pressures applied and the
internal weaknesses of the defendant.
I.
Rationale: Coerced confessions are barred because of their potential for unreliability and
their inconsistency with principles of accusatorial fair play and a desire to deter coercive
methods of obtaining confessions.
II.
Rule: The Due Process Clause is not concerned with all questionable confessions. Its sole
concern is involuntary or coerced confessions. The dispositive question is whether an
individual confessed because his will was overborne. See Arizona v. Fulminante.
1.
c.
Ashcraft v. Tennessee (1944): The defendant was subjected to a 36-hour interrogation with only a
five-minute break, which eventually caused him to confess to killing his wife.
I.
Holding: The Court held that this interrogation was so inherently coercive that it
rendered the confession involuntary, even though no official physically threatening
coercive measures were taken by the police.
1.
II.
d.
B.
In some respects, Jackson is right in that every attempt by the police to get a
suspect to talk will be a form of coercion. It is difficult to draw a line at which
forms of coercion we will tolerate and which we will not.
e.
A.
Jacksons Dissent: Jackson argued that there ought to be a line drawn between violent
tactics used by the police and prolonged interrogations. Here, he argued that the
defendants will was not overborne, as prolonged interrogation is a legitimate tactic used
by the police to get a statement from someone who doesnt want to talk.
1.
III.
In United States v. Alvarez-Sanchez, the Court held that this does not apply to statements
made by a person who is being held solely on state charges.
Spano v. New York (1959): Two weeks after shooting another bar patron, the 25 year old, foreign
born defendant turned him in to the authorities. He was subjected to questioning from a number of
authority figures, repeatedly was denied access to his attorney, and subjected to questioning from a
false friend on the police force. After a number of attempts to get him to confess, he finally did.
I.
Holding: The Court held that the defendants will was overborne and that the confession
was therefore involuntary.
II.
Rationale: The Court looked at a number of factors that it felt sufficiently coercive to
suppress the defendants confession - the petitioners will was overborne by official
pressure, fatigue, and sympathy falsely aroused after considering all the facts in the postindictment setting. The Court also found it significant that the defendant was foreignborn, had a low level of education, and probably a low I.Q. Finally, the fact that the
defendant had asked for and was denied counsel on a number of occasions served to
render the confession involuntary.
III.
2.
In Spano, the Court relied in part on representations to the effect that the
suspects telephone call had gotten the officer in trouble, and that his job was in
jeopardy as a result. This deceptive effort at gaining sympathy added to the other
Rule: The fact that a promise was used to secure a confession does not
necessarily render a confession involuntary. Even if the government fails to keep
a promise, a confession that results will not always be coerced. The same is true
for trickery. A statement produced by deceptions, misrepresentations, or other
dishonest ploys is not automatically inadmissible under the Due Process Clause.
4.
Brady v. United States (1970): In dicta, the Court indicated that even a mild
promise of leniency may render a confession involuntary because of its
potentially coercive effect.
A.
f.
Colorado v. Connelly (1986): Connelly initiated contact with the police when he approached an
officer on the street, and without any prompting, stated that he had murdered someone and wanted
to talk about it. The officer gave Connelly his Miranda rights and asked him several questions.
Connelly confessed to murdering a young girl in 1982, and told the officer the exact location of
the murder. To the officer, it seemed as though Connelly was acting rationally. After being held
overnight in jail, Connelly became visibly disoriented, and later stated that he was following the
voice of God when he confessed. He moved to suppress his confession, arguing that his psychosis
motivated his confession, rendering it involuntary.
I.
Holding: The Court ruled that the admission of the confession did not violate the Due
Process Clause, because it was not the product of overreaching by the police.
1.
2.
Rule: Due process is not violated unless the source of coercion is a state agent.
The most outrageous behavior by a private party seeking to secure evidence
against a defendant does not make the evidence inadmissible under the Due
Process Clause.
A.
VI.
If the defense can prove that the private party was acting at the behest
of the police or the prosecution as an agent, then the normal rule would
apply.
B.
III.
IV.
After Miranda was decided, there was a huge firestorm as to whether this was going to
make any difference in the operation of the criminal justice system. There is still some
debate about how much difference it has made, but most scholars agree that the decision
has made virtually no impact at all.
II.
III.
c.
Even if the defendant says she wants an attorney present during questioning, the
police rarely immediately call a public defender and ask them to come to the
station.
Many defendants talk because they think they can outsmart the police and talk
their way out of trouble.
2.
3.
People are focused on trying to figure out a way of getting out of the situation.
They do a cost-benefit analysis, and think that talking to the police might get
them out.
4.
Police are good at giving warnings in such a way that the suspect wont actually
understand what is contained therein. The significance of the warnings is never
communicated to them, and they are usually in a state of shock.
Miranda v. Arizona (1966): The Court specifically dealt with the admissibility of statements made
during custodial interrogation under the 5th Amendment privilege not to be compelled to
incriminate oneself.
I.
2.
This is interrelated with the fact that the court doesnt know what goes on
behind closed doors - possibility of physical or psychological coercion that the
voluntariness test cannot sort out.
A.
II.
d.
Again, Uphoff thinks that videotaping would be the best solution to this
problem.
Note: If a court concludes that there was a Miranda violation, this does not necessarily
mean that evidence obtained will be excluded. A number of lower courts dont use the
exclusionary rule where there has been a Miranda violation and nothing else (i.e., no
fruit of the poisonous tree exclusion.).
1.
The exclusionary rule only comes into play when there has been a
constitutional violation. Until Dickerson (below), the argument was that
Miranda was simply a prophylactic rule that was not constitutionally mandated.
2.
I.
II.
III.
VII.
In fact, it is unclear why the Court chose Quarles to create this exception. In
Quarles, the police claimed they were concerned about a gun in the parking lot
of a grocery store. It was late at night and the store was virtually empty.
IV.
Immediate and Future Threats to Public Safety: If the threat of harm is immediate and
can be prevented only by swift action, the exception is clearly applicable. If there is no
need to act quickly because the threatened harm will not occur until some future time, it
is uncertain whether the exception applies. Arguably, the rationale behind the exception
supports application of the exception even when the threatened harm is not immediate.
V.
The exception only clearly applies to a failure to give Miranda warnings in the first place,
not in situations where the defendant has already invoked his rights. Furthermore, in
cases of actual compulsion, the exception has no applicability. The privilege against
compulsory self-incrimination commands in absolute terms that no person shall be
compelled to be a witness against himself.
VI.
e.
Where the prosecution argues that the exception to protect the defendant himself,
courts have split on the issue.
1.
One court has extended the exception because of concerns about protecting the
individual defendant.
2.
Other courts have refused to extend the exception, arguing that the defendant is
the person in the best position to choose whether he wants help after being read
his Miranda rights.
3.
Dickerson v. United States (2000): In this case, the Court stated that Miranda is constitutionally
based, but did not suggest the rationale behind that conclusion. Thus, the Court held that Congress
cannot legislatively supercede Miranda given its constitutional basis. The Court also refused to
overrule Miranda despite arguments that it has not changed much in the criminal justice system.
CUSTODY
a.
Miranda applies to all crimes: A suspect is entitled to the procedural safeguards of Miranda,
regardless of the nature or severity of the offense of which he is suspected or for which he was
arrested. See Berkemer v. McCarty.
b.
Berkemer v. McCarty (1984): The defendant was pulled over after an officer saw him swerving in
and out of traffic in his car. The officer noticed that he was having trouble standing, and gave him
a field sobriety test. The defendant did not pass, he made some incriminating statements about
smoking weed and drinking, and the officer placed him under arrest and took him to the station
house. At no point were Miranda warnings given to the defendant.
I.
Holding: The incriminating statements made by the defendant were properly admitted at
trial because the interrogation was not custodial.
1.
2.
A formal arrest occurs when a person is explicitly told that she is being placed
under arrest. The functional equivalent of a formal arrest occurs when a
suspects freedom of action is curtailed to a degree associated with a formal
arrest or when he is subjected to restraints comparable to those associated with
a formal arrest. This determination must be made from the standpoint of a
reasonable person in the suspects position.
c.
Stansbury v. California (1994) Rule: An officers subjective and undisclosed view concerning
whether the person being interrogated is a suspect is irrelevant to the assessment of whether the
person is in custody. Likewise, the subjective belief of the suspect has no place in the analysis of
whether is in custody.
d.
Oregon v. Mathiason (1977): When a suspect comes voluntarily to the police station in response
to an invitation by the police, he will not necessarily be in custody.
I.
II.
e.
VIII.
Facts: The defendant, a parolee, came to the police station after the police asked him (via
phone) to come down so that they could discuss something. When the defendant came
down to the station, he was told that he was no under arrest. Later, the officer falsely told
the suspect that his fingerprints had been found at a burglary scene; the defendant then
confessed.
Holding: The Court held that Miranda warnings were not required because the suspect
had come to the station voluntarily, was informed that he was not under arrest, and had
not been restricted in his freedom to depart.
Hayes v. Florida & Dunaway v. New York suggest that if the suspect is brought to the police
station by officers without his consent, he will be in custody within the meaning of Berkemer.
INTERROGATION
A.
b.
Rhode Island v. Innis (1980): Two officers, while transporting the suspect to the police station,
engaged in a conversation in which they discussed the compelling need to locate a shotgun
believed to have been the weapon used by the suspect in a recent robbery/murder. Referring to a
nearby school, one officer expressed concern that one of the children might find the weapon and
hurt himself. The suspect interrupted the officers conversation and stated that he would show
them where the gun was located, which he proceeded to do.
I.
Holding: The Court held that the defendants statement was outside the scope of
Miranda because the officers could not reasonably have expected their conversation to
elicit an incriminating statement from Innis.
II.
Rule: Interrogation includes any words or actions on 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. This, too, is an
objective standard.
1.
B.
C.
c.
II.
Holding: The Miranda protections did not apply, because the defendant did not perceive
himself as being under interrogation, and thus, did not feel the coercive pressures that
trigger the protections.
1.
2.
Note: This does NOT mean that police agents are free to do whatever they want without
concern for the Constitution. There are still 2 other constitutional concerns that affect
activities by undercover agents posing as fellow inmates 1.
6th Amendment: If the defendant had already been charged with a crime, this
would be a violation of the defendants 6th Amendment right to counsel. (See
Below)
2.
Facts: A stationhouse officer told the defendant that he had a right to speak with an
attorney before and during questioning, and that he had the right to the advice and
presence of a lawyer even if he could not afford to hire one. Reading from a form, the
officer added, we have no way of giving a lawyer, but one will be appointed for you, if
you wish, if and when you go to court.
II.
Holding: In a 5-4 opinion, a majority of the Court held that this was a sufficient warning
under Miranda. Miranda does not require that attorneys be producible on call, but only
that the suspect be informed that he has the right to an attorney before and during
questioning and that an attorney would be appointed for him if he could not afford one.
1.
IX.
Illinois v. Perkins (1990): An undercover agent was posing as a fellow prisoner in the defendants
cell in order to elicit an incriminating statement, and this ploy did get the defendant to make
incriminating statements.
I.
d.
WAIVER
Uphoff thinks this is a troubling result that undercuts the 4th Miranda warning
requirement. However, this is a product of the Courts underlying dislike for
Miranda in the first place.
A.
Introduction: Miranda held that if a statement is obtained from a suspect during custodial
interrogation following provision of the required warnings, the statement may be admitted into
evidence only if the prosecution demonstrates that the suspect knowingly, intelligently, and
voluntarily waived his privilege against self-incrimination or the right to counsel.
I.
Rule: A valid waiver will not be presumed from the silence of the accused after the
warnings are given.
II.
Knowing and Intelligent: The focus is on whether the waiver was made with an
awareness of the rights being abandoned and the consequences of abandoning those
rights.
III.
b.
Voluntary: The waiver must be the product of a free and deliberate choice on the part
of the suspect, rather than the result of intimidation, coercion, or deception.
North Carolina v. Butler (1979): Butler was administered the Miranda warnings and responded
that he understood these rights. He refused to sign a written waiver form presented to him, but
nevertheless agreed to talk about the robbery he was being held for and proceeded to admit
participation in it. When his statement was offered against him at trial, Butler claimed that the
statement could not be used, as he had not expressly waived his rights.
I.
Holding: A waiver may be found in the absence of an express statement if the suspects
words and actions implicitly constitute a decision to forego his rights.
1.
Rule: The defendants silence coupled with an understanding of his rights and a
course of conduct indicating waiver may suffice. Here, the burden is on the
prosecution to prove that the defendant impliedly waived his rights.
A.
2.
II.
c.
The Court directed trial judges to look at the particular facts and circumstances
of the case, including the background, experience, and conduct of the accused.
Totality of the circumstances.
Colorado v. Spring (1987): Spring was arrested by federal agents in Missouri on a firearms
charge, read his Miranda warnings, and signed a written waiver form. The focus of the
interrogation changed from the firearms transaction to an unresolved murder in Colorado to which
Spring ultimately confessed. Spring moved to suppress the confession, arguing that he could not
have knowingly waived his right to remain silent when he was unaware that he would be
questioned about an unrelated crime.
I.
Holding: The Court rejected Springs defense, holding that the suspect need not be aware
in advance of all the possible subjects of the interrogation in order to make a valid waiver
of his rights.
1.
II.
Note: The information withheld by the police might go to the wisdom of the
waiver, but not to its essentially voluntary and knowing nature.
Marshalls Dissent: Marshall argued that the defendant clearly would not have talked to
the police without a lawyer if he realized that they intended to question him about a
murder charge. As such, the police were essentially tricking him into confessing.
1.
2.
III.
d.
II.
Holding: The polices actions did not undercut the validity of the suspects written
waiver of his rights.
1.
Events occurring outside the presence of the suspect, and entirely unknown to
him, surely can have no bearing on the capacity to comprehend and knowingly
relinquish a constitutional right.
2.
Once it is determined that a suspects decision to waive his rights was not
coerced, that he knew he could invoke his rights thereafter at any time, and that
he was aware of the states intention to use his statements against him at trial,
this completes the analysis and the waiver is valid as a matter of law.
3.
Note: A number of state courts have rejected Moran, and have disallowed confessions
where the police deceived the suspects attorney.
X.
Note: Normally, proof that a suspect was aware of the minimum facts needed for a
knowing waiver is supplied by the recitation of adequate Miranda warnings, as this is all
that the suspect must be aware of. In a case where a suspect could not understand English
or had mental impairments that precluded a basic understanding of the content of the
warnings, a waiver should probably be considered insufficiently knowing. Even if an
officer was not aware of the suspects limitations, the actual lack of the minimal
knowledge needed should render the suspects waiver invalid.
Moran v. Burbine (1986): The police failed to inform the suspect that an attorney had been
retained by a relative and was trying to see him at the police station. The police had assured the
attorney that the suspect would not be questioned until the next day, but proceeded to interrogate
him.
I.
e.
Rule: Failure to inform the suspect about all of the crimes he is going to be
questioned about does not amount to police trickery.
Note: The fact that a suspects decision to forego Miranda protections is unwise, contrary
to the suspects best interests, or illogical is irrelevant and does not render the waiver
invalid.
Michigan v. Mosley (1975): Mosley was arrested for robbery, read his Miranda rights, and
declined questioning by the police. Two hours later, another officer gave him a fresh set of
Miranda warnings and Mosley agreed to talk about an unrelated murder.
I.
Holding: The defendants right to cut off questioning had been scrupulously honored,
because the police had immediately ceased questioning when he exercised his right to
remain silent. Police only resumed questioning after a significant passage of time by a
different officer about a different crime in a different location in the jail with a fresh set of
warnings.
II.
Rule: If the police scrupulously honor the invocation of the right to remain silent and
then obtain a valid waiver, statements made in response to custodial interrogation will be
admissible.
III.
Proof: If the prosecution seeks to introduce a statement from a suspect who has initially
invoked his right to remain silent, it must be demonstrated that:
IV.
V.
VI.
1.
His right to remain silent, once invoked, was scrupulously honored, AND
2.
Where it is shown that the police failed to cease interrogation immediately, or engaged in
repeated efforts to get the suspect to change his mind, his right to cut off questioning will
be considered not to have been honored, and his resulting statements will be deemed
inadmissible.
This is a very fact-specific inquiry. Although no one factor is determinative, the courts
consider a number of factors, including:
1.
2.
3.
4.
Whites Concurrence: White argued that the focus ought to be on the voluntariness of
the defendants second waiver. If that waiver is voluntary, there should be no further
inquiry into whether his rights were scrupulously honored.
Edwards v. Arizona (1981): Police officers questioning the defendant ceased interrogation after he
asserted his right to counsel. He was taken to a jail cell where, the following morning, two other
detectives sought to talk to him, but he refused. A guard then told Edwards that he had to talk to
the detectives, and took him to meet them. The detectives read Edwards his rights again, and then
played a taped statement of an alleged accomplice who had implicated him in a crime. He then
indicated a willingness to talk to the detectives, and later made incriminating statements.
I.
II.
III.
IV.
Holding: The Court concluded that the playing of the tape constituted the functional
equivalent of interrogation under Innis, and ruled that his incriminating statement was
inadmissible.
Rule: After the suspect invokes his right to counsel, the police can only resume
interrogation in the absence of counsel if the suspect himself initiates such
communication with the police.
Proof: If the prosecution seeks to introduce a statement from a suspect who has invoked
his right to counsel, it must be demonstrated that:
1.
2.
3.
If the authorities initiate the communications, any statements that are the product of the
custodial interrogation will be deemed inadmissible. Even if the suspect gives what
would otherwise qualify as a valid waiver in such situations, the waiver will be presumed
invalid.
d.
Oregon v. Bradshaw (1983) Rule: Initiation by a suspect occurs only if the suspect demonstrates
a desire to open up a more generalized discussion relating directly or indirectly to the
investigation.
I.
II.
e.
g.
In Bradshaw, the defendant had invoked his right to counsel and later approached the
officers, asking whats going to happen to me now? The Court held that this was an
initiation on the part of the defendant such that the police were then free to seek a waiver
of the defendants right to counsel.
Davis v. United States (1994) Rule: A suspects request for counsel must be clear and
unambiguous.
I.
Rule: The suspects ambiguous or equivocal reference to an attorney has no legal effect,
and poses no additional impediments to custodial interrogation by the police.
II.
Rule: Police officers are under no affirmative obligation to clarify an ambiguous request
for counsel, and do not have to stop questioning where such request is unclear.
III.
f.
Initiation occurs when a suspect evinces a willingness and a desire for a generalized
discussion about the investigation.
Objective Standard: A suspect must articulate his desire to have counsel present with
sufficient clarity that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.
Minnick v. Mississippi (1990) Rule: Interrogation may continue only if an attorney is present or if
the suspect initiates further communication with the authorities.
I.
Rule: Presence means presence at the interrogation. The fact that a suspect has
consulted with an attorney following a request for counsel is not a basis for permitting the
authorities to initiate further interrogation. Only the presence of counsel at the subsequent
interrogation will suffice.
II.
Rationale: A consultation with counsel is not enough to remove the pressures inherent to
custodial interrogation. The need for counsel to protect the 5th Amendment privilege
comprehends not only a right to consult with counsel prior to questioning, but also to
have counsel present during any questioning if the defendant so desires.
Smith v. Illinois Rule: Once a suspect invokes his right to counsel with sufficient clarity under
Davis, his post-request responses to further interrogation may not be used to cast retrospective
doubt on the clarity of the initial request.
h. Arizona v. Roberson Rule: When the right to counsel is asserted an officials initiate further
communication with the suspect, the fact that the later interrogation was conducted by a different
officer is irrelevant. The fact that the interrogating officer was unaware of the suspects request for
counsel is also irrelevant.
I.
II.
i.
XI.
Rule: Officials have the responsibility to insure that they learn of requests for counsel
before interrogating a suspect.
Rule: The fact that the topic of a later interrogation is a different offense from the one
that was the subject of an earlier interrogation usually does not matter. Unless the suspect
makes it clear that her desire for counsel is offense specific, the presumption is that
she desires assistance of counsel for all custodial interrogations, regardless of the
specific offense.
Fare v. Michael C. Rule: A suspects request to have the assistance or presence of any individual
other than an attorney does not affect this issue. It raises no additional safeguards against custodial
interrogation and does not automatically constitute an invocation of the right to remain silent.
A.
Introduction: The 6th Amendment guarantees the accused the right of assistance of counsel in his
defense Although this guarantee was originally a right to assistance at trial, it has been extended
to certain pretrial stages of the criminal process.
I.
II.
b.
Note: Always look first to see whether its a pre-indictment or post-indictment situation.
The rules below only apply in post-indictment situations.
Massiah v. United States (1964): The prosecution admitted into evidence incriminating statements
that Massiah had made to a co-defendant, Colson. Unbeknownst to Massiah, Colson was
cooperating with the government and had initiated the conversation at the request of federal
agents, who recorded the conversation. The conversation occurred after both men had been
indicted, retained counsel, pled guilty, and were released on bail.
I.
II.
c.
Purpose of the Right to Assistance of Counsel: The American criminal justice system is
adversarial in nature. Fundamental fairness requires, among other things, rough equality
between the two sides. Accordingly, the assistance of counsel is indispensable to the fair
administration of the adversary system, because counsel is essential to ensuring this
equality. Without the assistance of counsel, the state could use its superior strength to
overpower to accused.
2.
After the defendant has been indicted, if the government wants to interrogate the
defendant, it must go through the defendants retained counsel.
2.
Compare Hoffa: In Hoffa, the suspect was wiretapped by the government, and
the Court allowed this evidence as legitimate. The difference in that case was
that the government had not yet formally filed charges against the suspect,
whereas in Massiah, the defendant had already been indicted, and the adversary
system had been put into play.
Brewer v. Williams (1977): Williams, a suspect in a child murder in Des Moines, surrendered to
the police in Davenport, following the issuance of a warrant for his arrest. He spoke by telephone
to an attorney in Des Moines, and was advised not to make any statements to the police. After
Williams was booked, arraigned, and advised of his Miranda rights, he was transported to Des
Moines, 160 miles away. The police officers who escorted him expressly promised his attorney
that he would not be questioned in route. During the trip, however, one of the officers gave a
Christian burial speech that prompted Williams to lead the police to the victim and make other
incriminating statements.
I.
d.
United States v. Henry (1980): The FBI arranged to have Nichols, a paid informant, placed in
Henrys cell as a cellmate. Although the agents instructed Nichols not to question Henry about his
crime, he was told to report incriminating statements to them (for payment), which he did.
I.
II.
e.
Holding: The government had intentionally set up this situation likely to induce Henry to
make incriminating statements, and thus, violated the 6th Amendment.
1.
K: Nichols was determined to be more than just a passive listener, and he was
paid for the information that he gave to the FBI. In essence, he was no more than
a paid agent of the government. The fact that he was paid is a factor that courts
tend to credit heavily in making the determination.
2.
Rule: To trigger the right to counsel, the individual engaging in the elicitation
must be working for (or as an agent of) the government. The individual does not
have to be an official employee, nor does she have to be compensated for her
work.
Note: The 6th Amendment does not apply to situations in which an informant goes to the
police on his own recognizance after learning incriminating information from a fellow
inmate.
Kuhlman v. Wilson (1986): An informant was placed in the defendants cell, but did nothing to
stimulate the conversation in which the defendant made incriminating statements.
I.
II.
XII.
Holding: Williams had been denied his 6th Amendment right to counsel when, after the
initiation of judicial proceedings (arraignment), the police deliberately elicited
information from him without affording him the opportunity to consult with his attorney.
Holding: Because the informant was merely a passive listener, the government did not
deliberately elicit information from the defendant. Thus, there was no violation of the
defendants 6th Amendment right to counsel.
Note: The defendant cannot make a valid 6th Amendment violation argument simply by
showing that an informant, either through prior arrangement or voluntarily, reported his
statements to the police. Rather, it must be shown that the police and the informant took
deliberate action (beyond merely establishing a passive listening post) that was
designed to elicit incriminating statements from the defendant.
Introduction: Eyewitness fallibility and false identifications account for most innocent
convictions as a result of mistaken identifications. Accordingly, the defendants 6th Amendment
right to counsel attaches to such procedures, as this is considered a critical stage in the trial
preparation. The defendant is in no position to protect herself at this stage in the adversarial
process and needs counsel to aid the defendant and be a neutral observer in the identification
process.
I.
B.
II.
Circumstances surrounding the crime itself have an effect on witnesses, as they may have
been focused on something else at the time of the event, rather than the person actually
committing the crime.
III.
There is also a problem with racial profiling, because if an eyewitness sees a person of a
particular race commit the crime, it will be easier to pick any person of that race out of a
line-up, regardless of whether it is the actual perpetrator of the crime.
Courts have struggled with a number of ways in which to deal with the problems associated with
eyewitness identifications I.
1.
II.
It has become more common for expert witnesses to testify as to the circumstances that
might affect the accuracy of an identification. This is used as a basis to try to educate lay
individuals on the problems inherent with this process.
1.
III.
IV.
C.
1.
The more positive the eyewitness is in the identification, the more likely it is
that the members of the jury with believe him.
2.
Problem: Research also shows that there is virtually no correlation between the
confidence that the eyewitness asserts in the identification and the accuracy of
that identification.
Some courts have tried to use tailored jury instructions to inform jurors there might be
reasons to be suspicious of an eyewitness identification.
Problem: Jurors often discount jury instructions as given to them.
The End Solution: Because of these systemic problems, the Court in Wade held that we
must protect against subjectivity in the identification process by providing defendants
with counsel during a live line-up.
There are 2 constitutional sources to protect the suspect in the identification process I.
II.
d.
Problem: Jury researchers have found that lay people, and indeed many judges,
place a high degree of confidence in eyewitness identifications, even where such
confidence may be misplaced.
Research also shows that jurors place tremendous weight on an eyewitness who states
with confidence that they believe the defendant is the perpetrator of the crime.
1.
V.
6th Amendment right to counsel - The defendant has the right to have counsel present at
lineups after the initiation of formal criminal proceedings.
Due Process - Some identifications may be so unnecessarily suggestive and conducive to
mistaken identifications that the defendant is denied due process of law.
Wade v. United States (1967): The FBI conducted a line-up without notifying the defendants
attorney. The defendant was picked out of this line-up, and later complained that his lawyer was
not present when the line-up was conducted.
I.
II.
Holding: The procedure was in violation of the 6th Amendment rights of the defendant, as
this is considered a critical stage of the adversarial process in which the defendant
needs effective assistance of counsel.
The Court analyzed this case by looking at it both under the 5th and 6th Amendments.
1.
2.
Under the 5th Amendment, the Court held that the line-up did not violate the
defendants right against self-incrimination.
A.
The 5th Amendment does not protect against the use of some physical
characteristics of the defendant. X/A Schmerber where the Court held
that the police could draw the defendants blood to obtain evidence.
B.
C.
Under the 6th Amendment, the Court held that the defendants right to assistance
of counsel was violated because counsel was not present during the live line-up.
e.
B.
Any pre-trial confrontation is still scrutinized under the 5th and 14th Amendments, which
forbid a line-up that is unnecessarily suggestive and conducive to irreparable mistakes.
II.
Note: Uphoff thinks this is dumb, because suggestive procedures in line-ups are just as
problematic in pre-indictment procedures. It poses the same risk to the defendant as in a
post-indictment line-up in the long run.
III.
f.
A.
1.
After this line of cases, the police will simply delay the charging process and do
a line-up before the indictment.
2.
Better Solvency: Use the DOJs set of guidelines and procedures to be used by
law enforcement officers. These guidelines are aimed at making procedures
more reliable and at minimizing the dangers of suggestibility that occur when
poor police procedures are employed. Currently, New Jersey has adopted these
guidelines and other states are considering them.
Brennans Dissent: The witness is not likely to go back on his previous identification
made during a line-up later at trial. If suggestive procedures are used by the police at this
stage, this may cause irreparable harm to the defendant in the long-run.
United States v. Ash (1973) Rule: Counsel is not required at a photographic array identification.
I.
II.
III.
The Court stated that a pretrial display of photographs for the purpose of identifying the
accused does not constitute a critical stage of the prosecution at which the accused is
constitutionally entitled to the presence of counsel.
Rationale:
1.
2.
3.
Brennans Dissent:
1.
It does not matter that the defendant is not present when a photo array is
conducted; it only matters that his interests are infringed upon.
2.
There is much more room for suggestibility with photographs than with live
line-ups.
3.
We need counsel present at such line-ups to ensure that the process is not overly
suggestive or violative of the defendants rights. Because no one is present at a
photo array, there will be no one to complain about suggestive procedures used
by the police.
IV.
G.
H.
Reality: Even though live line-ups are more accurate than photo arrays, because such
line-ups require the presence of the defendants attorney, police are more likely to
conduct a photo array.
The person conducting the line-up should not know the identity of the actual suspect,
because if the person knows the suspect, it is more likely that he will give off suggestive
signals.
II.
The eyewitness should be told that the suspect might, or might not, be present in the lineup. Thus, the eyewitness should not feel compelled to make an identification if she
doesnt actually see the perpetrator.
1.
Double-blind line-ups: Conduct one line-up with the suspect and one without
and see if the eyewitness can pick out the right person.
2.
Research shows that the witness will pick out the person that looks most like
the perpetrator. This person may or may not be the actual perpetrator. If the
witness feels pressured to pick someone out, this is the risk that is run.
III.
The suspect should not stand out in any way at any line-up. There should be absolutely
not distracters that point-out this person to the eyewitness.
IV.
Obtain a confidence statement at the time of the identification attesting to how confident
the witness is in her initial identification.
II.
III.
Reality: After pre-trial preparation, the government will put the witness on the
stand and the witness will say that they can make the ID based on their
independent recollection of the defendant from the scene of the crime. The trial
court has to make a finding of fact on this issue, but in 99% of cases will allow
the government to use the witness at trial and allow the in-court identification of
the defendant.
2.
The main thing that will hurt a defendant is the in-court identification
by the eyewitness, as research shows that juries place a lot of weight in
such IDs.
B.
Introduction: Utilizing a totality of the circumstances approach, the Court must determine
whether the procedures employed were:
I.
II.
b.
This has become more important recently given the concern about reliability of
identifications.
2.
Stovall v. Denno (1967): Stovall was arrested and arraigned after a doctor was stabbed to death
and his wife was critically wounded. After he was arraigned, the officers took him to the wifes
hospital room without counsel, because the wife couldnt be transported to the station for a line-up
and the officers were concerned that she would die before she got a chance to identify the
defendant. The defendant was the only black person in the room, and he was handcuffed to an
officer. The officer asked if this was the guy, and the wife said yes. The wife testified at trial that
this was the man, and made an in-court identification of the defendant and also testified that she
had made an out-of-court identification of the defendant.
I.
II.
Issue: Whether the defendants due process rights had been violated by this
identification testimony.
Holding: Although the Court condemned such one-on-one identifications as being
suggestive and unreliable, the Court held that the defendants due process rights were not
violated.
1.
III.
c.
The Court used a balancing test (per se test) to come to this determination.
Although this was a suggestive procedure, given the emergency situation that
confronted the police, they had no other way to confirm or deny that this was the
assailant. If they had waited and the woman had died, they would have no way
evidence concerning the identity of the perpetrator. Therefore, necessity dictated
that they engage in this process in this particular situation.
Focus: The Stovall test focuses on whether the suggestive procedures used are really
conducive to irreparable misidentification. If the procedures are so unduly suggestive that
they are likely to create a misidentification, they can be suppressed.
1.
2.
Rule: The government does not violate due process when it subjects a suspect to an
unnecessarily suggestive ID method and secures an identification from a witness. A
violation of fundamental fairness can occur only when the suggested identification is
used at trial to obtain a conviction.
1.
A.
2.
II.
Here the Court shifted to a totality of the circumstances approach to see if there is a
substantial likelihood of misidentification due to unreliability of the original
identification by the eyewitness. It focused on the factors that tend to show or disprove
reliability in the identification process. These factors include 1.
The opportunity of the witness to view the criminal at the time of the crime:
The better the witnesss opportunity to see the offender at the time of the
offense, the more likely it is that her identification is the result of observations at
the crime scene A weak opportunity to observe makes it more likely that the
governments suggestion prompted the identification.
2.
The witnesss degree of attention: The greater the witnesss attention at the time
of the crime, the stronger the likelihood that the identification is reliable. If the
witness paid limited attention, her identification is less likely to be reliable.
3.
4.
5.
The time between the crime and the subsequent confrontation: The Court
assumes that memories fade continuously over time. Consequently, the longer
the time between the original viewing of the offender and the ID of the
individual, the weaker the case for the IDs reliability. Shorter time periods
enhance the case for reliability.
6.
These factors are to be weighed against the corrupting effect of the suggestive
identification itself. The degree of suggestiveness in the ID process: The more
suggestive the ID process, the less likely it is that the government will be able to
establish that an ID was the product of observations made at the crime scene
rather than the product of improper suggestion.
A.
B.
C.
III.
Although the Court suggests that the identification evidence should be analyzed
independent of any other evidence presented to secure the defendants guilt, as a practical
matter, judges look at all of the other evidence in the case and try to figure out if the
identification should be used.
IV.
Uphoff thinks this is a troubling result, as we have moved from a per se test to a totality
of the circumstances test to determine if there is a substantial likelihood of
misidentification.
1.
2.
Braithwaite now says that our focus must be on reliability. What were really
telling the police is that if the identification turns out to be reliable, then well
set the testimony in at trial regardless of whether the procedures were unduly
suggestive.
A.
XIV.
Scholars have criticized this test as one that is so wishy-washy that its
likely to allow virtually all IDs to pass the test. We also have no way of
showing to the jury just how risky this endemic problem is.
Exclusionary Rule: Direct and indirect (derivative) products of constitutional violations are
excluded from admission as evidence at the defendants trial.
B.
Standing Exception: Remember that the standing doctrine states that the only person who can
complain about a constitutional violation is the person who is actually aggrieved by that violation.
The defendant needs standing to protest the violation before the exclusionary rule can come into
play.
C.
Impeachment Exception: If the police take a confession in violation of Miranda, the prosecutor
cannot use that statement in its case in chief. However, the prosecution can use the statement as
rebuttal evidence if the defendant testifies in a way that is contradictory to the initial statement at
trial. See Harris v. New York.
D.
II.
III.
Rule: Even if and illegal act committed by the government leads to certain evidence, if
the government can show that there was an independent source to discover such
evidence, it can introduce such evidence at trial.
1.
2.
If certain information is learned in an illegal way and then the very same
information is learned by independent legal methods, it is admissible because it
was derived from a source independent of the illegality.
2.
If the very same information is discovered twice, once legally and the other
illegally, so long as the legal means of discovery truly is independent of the
illegal discovery, the evidence will fall within the independent source doctrine.
Note: Government conduct will not qualify as an independent source if there is a causal
connection between the illegality and the allegedly legal conduct.
1.
2.
If the illegal action enables or facilitates the success of the legal conduct, the
legal conduct should not qualify as an independent source. But see Murray.
iv. Silverthorne Lumber Co. v. United States (1920) established the independent source
rule: In order to claim the exception of the independent source rule, the government has
to prove that there truly is an independent source for the discovery of the evidence sought
to be introduced.
1.
If the government can show an independent source for the information, it makes
sense that it ought to be able to use the evidence at trial, because there is no
causal connection between the illegal conduct and the evidence.
A.
v. Murray v. United States (1988): The police illegally entered a warehouse without a
warrant and observed bales of marijuana. Without disturbing the bales, they left to secure
a search warrant. In their affidavit, the relied solely on the information they would later
contend they had prior to the illegal entry. The officers neglected to mention the illegal
entry in their affidavit. The warrant was issued and executed and the bales were seized as
evidence.
1.
Holding: The Court found that the bales could properly be admitted into
evidence if there was an independent basis for their discovery. The case was
remanded to determine whether the warrant-authorized search of the warehouse
was an independent source of the challenged evidence.
2.
The independent source here would be the warrant. If the officers could have
secured a warrant to search the warehouse based on evidence independent of the
illegal entry, there would be an independent source for their discovery.
A.
3.
The majority also felt that there were a number of other safeguards in place so
as not to encourage the police to disregard the warrant requirement of the
Constitution.
A.
Uphoff thinks this is a bunch of crap, as police officers will not likely
be reprimanded for unconstitutional behavior if it leads to evidence that
can later be used at trial.
B.
C.
The key battleground between the majority and the dissent is based
around the deterrence incentive provided to the police due to operation
of the exclusionary rule. How you come out in this debate is a function
Rule: Even if evidence is found to have been illegally obtained (or the fruit of illegal
activities), the government can still use such evidence if it can prove that the evidence
inevitably would have been discovered by lawful means.
1.
2.
Bad Faith of the Officers Irrelevant: The exception applies even if the officers
knew that there actions were unlawful, knew that there was a lawful alternative,
and deliberately chose the unlawful route because it would expedite the
discovery of the evidence.
3.
ii. Nix v. Williams (1984): The defendants 6th Amendment right to counsel was violated
when an officer gave the Christian Burial Speech that prompted (deliberate elicitation)
the defendant to show him where the body of his murder victim was located. At the time,
there was an independent search for the dead girls body, and members of the search party
testified that they would have located it in a short time period had the defendant not led
the police to the body.
1.
Holding: Despite the direct causation between the constitutional violation and
the evidence, the Court allowed admission of the evidence at trial because the
body inevitably would have been discovered by the volunteer search party
within a short time period. Because temperatures were extremely cold, the
physical evidence taken from the body itself would have been in substantially
the same condition had the defendant not led the police to the site of the murder.
2.
The Court indicated that the government must prove a readily verifiable basis in
fact that the evidence would have inevitably been discovered despite the
illegality.
3.
Dissent: The dissent agreed that this was an appropriate doctrine, but disagreed
on the appropriate burden of proof. The justices in the dissent argued that the
government should have to prove the inevitable discovery by clear and
convincing evidence, rather than by a preponderance of the evidence.
A.
F.
Rule: If the taint of the original constitutional violation becomes too attenuated, the
Court will not exclude the evidence at trial. There comes a point at which the
connection between the evidence and the unlawful conduct becomes so attenuated as
to dissipate the taint.
ii. Wong Sun v. United States (1963): James Toy was illegally arrested (no probable cause)
on suspicion of narcotics trafficking. At the time of his arrest, Toy made a statement to
the police implicating Johnny Yee. The police illegally arrested and searched Yees
Wong Sun had been released on his own recognizance and had
voluntarily returned days later to make the incriminating statement.
These were the factors that the Court found important in determining
that the evidence was sufficiently attenuated.
B.
iii. Brown v. Illinois (1975): This case gives additional meaning to the attenuation doctrine
by laying out four factors to assess in determining whether the evidence is sufficiently
attenuated from the original illegality so as to be admissible at trial 1.
2.
Proximity in time between the arrest and confession - The longer the time
period between the misconduct and the discovery of the evidence, the stronger
the case for attenuation.
3.
4.
A.
B.
c.
Purpose and flagrancy of the police misconduct - Evidence that is the product
of an intentional or egregious illegality is less likely to fall within the exception
than evidence that is the product of carelessness or a reasonable mistake about
the legality of a particular act.
iv. Oregon v. Elstad (1985): Officers custodially interrogated a suspect without giving
Miranda warnings or obtaining a waiver. The suspect made incriminating remarks.
Shortly thereafter, the officers again conducted a custodial interrogation after warning the
suspect and securing a waiver. The suspect again incriminated himself.
1.
Issue: Because the first confession was in violation of Miranda, can the second
confession be used?
2.
Holding: The Court held that any connection between an initial failure to warn
and a subsequent statement made after compliance with Miranda was
speculative and attenuated at best. Although the first statement must be
excluded, the second statement made after compliance with Miranda does not
have to be excluded.
A.
B.
3.
4.
B.
II.
G.
Introduction: Because the primary purpose of the exclusionary rule is deterrence, that
objective is best achieved when the violation is knowing and deliberate rather than the
result of an honest mistake. However, this exception seems to fly in the face of the 4th
2.
3.
Rule: The exception applies only when officers search or seize on the basis of a
warrant. It does not permit the admission of evidence acquired as a result of a
warrantless search or seizure. The controlling question is whether a reasonable
officer would have believed that the search or seizure authorized by the warrant
was constitutional.
ii. United States v. Leon (1984): The police conducted a search pursuant to a warrant issued
by a magistrate. The warrant was subsequently found to have been issued without an
adequate showing of probable cause, as the affidavit was based on the word of a
confidential informant of unproven reliability. The defendants moved to suppress the
evidence obtained in the search.
1.
Holding: Because the police were deemed to have reasonably relied on the
warrant (in good faith) in the execution of the search, the Court concluded that
there was no point in excluding the evidence at trial.
A.
2.
B.
Note: A number of state courts have rejected this exception and will
suppress evidence if procured by a defective warrant, irregardless of
whose fault the mistake was.
3.
4.
5.
Underlying Tension with Gates: The Court has already relaxed the standards
for procuring a warrant in Gates, which liberalized the ability for police to
secure warrants. In Gates, the Court essentially created a rule in which probable
cause will be found UNLESS no reasonable person would have found probable
cause. If no reasonable person would have believed that there was probable
cause, then how can a reasonable police officer rely on a warrant that is
objectively unreasonable?
A.
Holding: The Court held that the police acted reasonably in this situation and
refused to suppress the evidence procured by the defective warrant.
A.
IV.
V.
Four Instances in which the Good Faith Exception does not apply 1.
2.
3.
4.
Illinois v. Krull (1987): The Court concluded that even though a search,
authorized by statute, was constitutionally unreasonable, the evidence obtained
was admissible because the officers had acted in objectively reasonable reliance
upon the statute authorizing the search. The error is that of legislators who, like
judges, do not need to be and are no likely to be deterred by the exclusion of
evidence. When officers have acted in reasonable reliance upon a statute there is
no police error to deter.
2.