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CRONIC 2 Ways to get IAC (must show prejudice) into 6th Amendment Denial of Counsel (prejudice is presumed) category: 1. if appointed counsel doesnt have time to prepare an effective defence, its the same as not having counsel 2. Sleeping Lawyer might as well not be there at all (very rare)
03: 21 JUNE 2011 NEW CASE: J.D.B. 2011 5-4 Decision: FOR: Sotomayor, Kennedy, Ginsberg, Breyer, Kagan AGAINST: Alito, Roberts, Scalia, Thomas HINT: Address your argument to Kennedy MBE STUDY GUIDE Not one he recommends, but the review session will have practice questions. STUDY THE RULES!! REVIEW 6th Amendment Right to Counsel: Entitled to Counsel (+1 appeal) Entitled to Transcripts Entitled to Professional Witness Triggered by 1.) First Court Appearance 2.) Grand Jury Hearing MIRANDA DOES NOT TRIGGER RIGHT TO COUNSEL! Can decline Right to Counsel if CT find waiver is intelligently and knowingly made AND that he's mentally competent to represent himself IAC: Has a right to the attorney being EFFECTIVE (STRICKLAND). If performance was deficient by objective standard, MUST SHOW PREJUDICE (prove the outcome would have been different if counsel was effective). Otherwise, it's the same as not even having counsel. POWELL two days is NOT enough time to prepare an effective defense, therefor, it's the same as being denied 6th Amendment Counsel. Right to Counsel in Quasi: no right to counsel in parole hearing. Juvenile proceedings are so similar to criminal trial that they have a Right to Counsel. Special/General Court Martial: Absolute Right to Counsel (not in Summary CM, though) "Unfit Home" are civil proceedings are not criminal, so you're not entitled to counsel
JANIS 1976
Cash seizure is subject to tax action (civil, not criminal). Exclusionary Rule doesn't apply.
LOPEZ-MENDEZ 1984
Same inadmissible evidence in criminal trial can be used in a deportation hearings (Illegal Alien). Exclusionary Rule doesn't apply.
SHEPPARD 1984
Homicide search, but they only have a modified drug warrant (left in the bit about it only being about a drug search) - warrant was defective, but the cop relied on the judge in good faith. Exclusionary Rule doesn't apply.
GROH
Glaring error in warrant means "good faith" doesn't apply. Exclusionary Rule applies.
KRULL
Officer relies on a warrantless search statute currently on the books, but statute is repealed - reliance on law as it existed at the time constitutes "good faith". Exclusionary Rule doesn't apply.
HERRING
Faulty police record keeping (recalled warrant) leads to arrest/seizure. Exclusionary Rule doesn't apply because the arresting officer operated in "good faith". (Bad case) Muir's Opinion: Encourages sloppy record keeping by police.
SODAL 1992
No search if you seize the whole house? No, 4th Amendment protects possessions as well.
PLACE 1983
4th Amendment protects Freedom of Movement (detained with no lawful right to do so).
SEE 1967
4th Amendment also protects places of business
FINAL EXAM
Thursday 04 August Full Course Review: 28 July (last class)
SPINELLI 1969
2 Prongs can be supported by police legwork (corroboration). "Aguilar-Spinelli" 2-Pronged Test: V+B+C
GATES 1983
Established "totality of circumstances" approach that replaced Aguilar-Spinelli 2 Prong Test. (Basically, you still evaluate V+B+C, but you don't reference "Prongs" anymore.) The evidence sought to be seized is CURRENTLY at the place to be searched (10 days). If the "whole picture" (totality of circumstances) suggests that the informant info, coupled with the police efforts to corroborate info, is reliable and trustworthy, the the Court should approve issuing the search warrant (fair probability that the contraband or evidence sought to be seized is currently at the place to be searched).
UPTON 1984
"Totality of Circumstances" rejected by Massachusetts because their standard, set in their state constitution (Article 14), is a higher Due Process standard.
FRANKS 1978
If you can show that the cop deliberately lied in the affidavit (reckless disregard for the truth), but if you delete that from the affidavit and probable cause still holds up, the lie is inconsequential. It must have a bearing on probable cause to invalidate a warrant. (Criticism: allows cop to perjure himself w/o penalty)
McCRAY 1967
If the informant is a material witness to any of 's charges, you can force disclosure of informant's identity. Prosecution will get around it by not charging the controlled buy, but rather only the drugs found during the search warrant; this was the informant is immaterial to the charges and you can't force disclosure. On the test, makes sure you look at what he's charged with - if it's the controlled buy, you can get disclosure of the identity.
ANDREAS 1983
Once a package has been lawfully opened, it loses its 4th Amendment privileges.
SHADWICK 1972
Need not be a lawyer or judge, just a good working knowledge of the law. (For the test, assume a good warrant has been signed by a judge.)
YBARRA (DETENTION & SEARCH OF PERSONS ON PREMISES) 1979 Probable Cause doesn't extend to customers at a bar simply because they're at a place where a crime may have been committed. SUMMERS 1981
Police have right to detain all occupants when a search warrant is being executed on a property for as long as it takes to perform search. For officer safety and discover DNC linking detainees to property.
MENA 2005
Police may not only detain but can also handcuff occupants when performing a search of a property. Can't search their person (YBARRA) unless they believe they have a weapon. YBARRA+SUMMERS+MENA
ZURCHER 1978
A subpoena gives an opportunity to destroy documents. A search warrant seizes them before they can be destroyed. A special master (usually a retired judge) can be appointed when dealing with companies who handle confidential information (doctor, lawyer, clergyman or newspaper). TEST: Probably cause & Terry stops are more complex and need multiple paragraphs in analysis. The others don't. Must be able to show if probable cause meets the Gates tests. Underline Gates: The 4th Amendment requires that warrants be based on probable cause, meaning that, based on the totality of circumstances, the magistrate must have sufficient evidence to conclude that the evidence to be seized is CURRENTLY
ATWATER 2001
With probable cause, an officer can arrest on petty crimes.
MOORE
A state statute can forbid arrest for certain offenses, but if the officer does it anyway, it's not a violation of 4th Am.
SCOTT 2007
Use force that is necessary to the circumstances.
McLAUGHLIN 1991
An arrested individual should receive a probable cause hearing without "unreasonable delay" (within 48 hours). Sometimes doesn't count the day of the arrest (arrest Thursday, hearing Monday = 5 days). "3 Day Kickout" if they don't file charges on the 3rd day (not counting arrest day & weekend). Wednesday arrest, Friday kick out. WATSON GIVES POLICE DISCRETION FOR WARRANTLESS ARREST, BUT McLAUGHLIN IS A SAFETY VALVE THAT MAKES THEM PROVE PROBABLE CAUSE TO HOLD THEM.
CHIMEL (PERMISSIBLE SCOPE OF SEARCH "INCIDENT TO ARREST") 1973 Can search only for weapons & preserve evidence. Anything beyond this (other parts of the house) requires a warrant.
6: 30 JUNE 2011
WILSON 1999
Bringing the press into a crime scene is forbidden, but it's okay to bring a victim to the scene of a search to identity.
TERRY (DETENTION MUST BE BASED ON "REASONABLE SUSPICION" OF CRIMINAL ACTIVITY/COMMENSURATE RIGHT TO FRISK A DETAINEE IF REASONABLE BELIEF HE'S ARMED) 1968
1. Police can seize an individual if suspicion is based on articulable facts ("reasonable suspicion" drawing on events witnessed and experience). Don't need probably cause. 2. Can also frisk for HARD OBJECTS (weapons) 3. A temporary detention is a seizure of the body, therefore it implements the 4th Amendment. Opinion: The most powerful pro-police decision the SC has made, empowering. Subjective intent SHOULD b
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ROYER
Consent can be invalidated if detained without reasonable suspicion.
ROBINETTE
Stopping for minor infractions in order to get consent to search (which idiot drivers usually give). Should inform that the detention has been terminated and they are free to go, but they are not required to do so.
JOHNSON
Officer is justified in frisking for weapons if he has a reasonable fear that someone is armed.
REVIEW
If a search is made w/search warrant, it is presumed to be valid.
J.L.
Corroboration necessary to make up for a lack of veracity. Specifics & predictive behavior support veracity.
HENSLEY (APBs)
Someone matching the description in an APB is "reasonable suspicion" enough to to justify a Terry stop.
HAYES
Momentary detention to take someone's fingerprints in the field (or photo) is permissible.
(CONSENT)
The public need not be informed that they don't have to give consent. Prosecution shoulders the burden of proving that the consent was voluntary.
BUMPER
Faulty warrant invalidates consent only when the official asserting they have have a warrant demands it.
JIMENO
Even in a consented search of the car, you must specifically ask for separate consent to search the trunk & any closed containers belonging to 3rd parties.
MATLOCK
Joint possession - either one can give consent to search. In a shared apartment, either can give consent to enter shared areas (hallway, living room, dining room, single bathroom). Absent roommate's bedroom is off-limits.
NOTES
Consent can be obtained during a consensual encounter. Doesn't have to be a (lawful) seizure of the body (arrest/detainment)
CABALLES
If lawfully stopped, a dog sniff for drugs is permissible.
EDMOND
Random stops/roadblocks for dog sniffs is NOT permissible.
BORDER CHECKPOINT
Any car going through a border checkpoint is subject to a random search. Non-individualized suspicion must be justified usually - going through a border is justified. The further away you get from the border, the more the need for individualized suspicion.
DUI CHECKPOINTS
Considered a public safety measure, not law enforcement, so it trumps 4th AM individualized suspicion requirements.
CAR SEARCH WILL ABSOLUTELY BE ON THE FINAL ESSAY! RAKAS (CURRENT APPROACH ON "STANDING")
You can only challenge a search if you can show a reasonable expectation of privacy in the area to be searched (putting drugs in your girlfriend's purse - illegal search can't use them against her, but they can use them against you, since you have no standing RAWLINGS). BRENDLIN: A car passenger can challenge the legitimacy of the stop(standing) OLSON: Overnight guest has standing to challenge search of guest room. CARTER: Temporary visitors have no standing.
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(WIRETAPPING-SEE HANDOUT)
Used in drug cartel, political corruption, kidnappings, and terrorism cases. If you listen in on a conversation without consent of at least one of the participants, you must have a wiretap warrant. DELIA: Court ruled that it's implied in Title 3 that, with wiretap authorization, law enforcement is authorized to make covert entry into someone's home.
ENTRAPMENT
Not on the final essay. Only one question on multiple choice. Court's philosophy: It's not part of Due Process or Constitution. It's SC's policy that there is enough legitimate crime that we don't need the police creating more.
CONFESSIONS
Society values "owning up". If a confession is accurate and not coerced, society is served. Over time, the focus shifted from accuracy of the confession to the police conduct involved in obtaining the coercion.
McNALLY
If someone is lawfully in jail and is unnecessarily prolonged before bringing him before a magistrate, even if properly Mirandized, confession is suppressed.
MALLOY
Applied 5th AM to the states.
MIRANDA
Forces the police to inform the suspect of their rights to counsel and silence. Must be given when two things exist: 1.) is in custody (detention or arrest) 2.) The questioning of must be accusatory, not investigatory (police initiated custodial interrogations). (Somewhat misleading - actually means that, while the right to an attorney doesn't kick in until he's charged, the police must stop interrogation once suspect invokes this right.)
WHAT IS "CUSTODY"?
If police have p/c to arrest but don't, is not in custody, so there is no need to recite Miranda warnings. EXCEPTION: (McCARTY) During a routine traffic stop (even DUI), the initial questioning is not accusatorial and doesn't require Miranda warnings. (Even though the stop is detainment.) Once he's arrested, he needs warnings. ALVARADO: "Reasonable person would believe that they are in custody." JDB: Take age & location into consideration for custody (school kids).
WHAT IS "INTERROGATION"?
INNIS: Any words or actions on the part of the police that the police SHOULD know are reasonably likely to illicit an incriminating response from the suspect is the functional equivalent of interrogation.
12 - 21 JULY 2012
Insulates from further police contact. Give Miranda a second layer of protection if specifically invokes right to counsel. Cops can't try again.
The right to counsel is offense specific. Only attached to that specific charge was arraigned on. Now that JACKSON was overruled by MONTEJO, it is less relevant - he must specifically & unambiguously request an atty. COBB: Does not attach to unrelated charges.
JACKSON
asking for a lawyer in court is the same thing as an EDWARDS invocation face-to-face with a cop. (Overruled by MONTEJO).``
MASSIAH
After has been arraigned and assigned counsel (right to counsel attached), police may NOT use a secret agent to gather evidence against . Contrast HOFFA, where snitch was asking about a separate crime. There's no right to privacy in a jail, so planting a snitch is not a 4th AM violation as long as he's not yet charged. However, if his right to counsel has attached, snitch can actively listen, so long as he doesn't question .
PERKINS
An informant situation is not governed by MIRANDA.
PRE-TRIAL IDENTIFICATIONS
CURBSIDE LINEUP: 1-on-1, with no lineup, just victim and suspect PHOTO ARRAY: 6 pictures LIVE LINEUP: 6 people go before the lights
ASH
You NEVER have a right to counsel at a photo lineup/array.
MANSON
Test for determining the admissibility of in-court identification where there has been a previous unduly suggestive identification procedure (curbside, photo, live lineup). (In this case, a single photo lineup.) "Whether under the "totality of circumstances" the identification was reliable even if the confrontation procedure was "suggestive". Circumstances affecting witness's ability to make an accurate identification: Race, lighting, FOR TEST ON IDENTIFICATION: 1.) Say when Right to Counsel Attaches (photo: ASH - never; before arraignment - WADE-GILBERT & KIRBY- No; post-arraignment - WADE-GILBERT & KIRBY - Yes) 2.) Say what's wrong with the lineup (unduly suggestive) 3.) What is the test for admissibility? MANSON Reliability Test. Look at the physical description. Look at certainty of identification. Look at witness's opportunity to observe the suspect. NAIL ALL 3!