CRIMINAL PROCEDURE – POLICE PROCEDURES 4TH AMENDMENT - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. sub ject for the same offence to be twice put in 5TH AMENDMENT - nor shall any person be subject jeopardy of life or limb; nor shall be compelled in any criminal crim inal case to be a witness against himself , nor be deprived of life, liberty, or property, without due process of law. 6TH AMENDMENT - In all criminal prosecutions, the accused shall enjoy the right to a speed y and public trial, by an impartial jury of the State and district district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the t he accusation; to be confronted with the witnesses agai nst him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
1. THRESHOLD REQUIREMENT – was was there a search? a. Katz – in in determining whether there was a search we w e ask: does person have a reasonable expectation of privacy? b. State Action – Need Need state action to show 4 th violation. c. Open Fields – if if you can see it from the street u shit out of luck d. Curtilage – might be protected under the 4th, look at totality and determine whether the person had a reasonable expectation exp ectation of privacy in their curtilage (proximity, existence of enclosure, nature of use, precaution taken to exclude others) 2. UNREASONABLENESS AND PROBABLE CAUSE a. Probable Cause to Search - exists where facts and circumstances c ircumstances within officer’s knowledge and of which they have 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 b. Probable Cause to Arrest –– exists exists where facts and circumstances within officer’s knowledge and of which they have ha ve reasonably trustworthy information
are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested c. Information obtained by Tip – totality totality of the circumstances; but look at AguilarSpinelli factors to determine whether a tip can be relied re lied on i. Basis of Knowledge) underlying circumstances surrounding tip) ii. Veracity (reliable/credible) d. Pre-textual Stop – all all good so long as there was a valid pretext; then you need probable cause to do anything else (search). Whren 3. UNREASONABLENESS AND THE WARRANT REQUIREMENT a. Searches Without Warrants – a police search of private premises without a warrant is presumptively unreasonable. b. Searches of People, Houses, and Papers i. Knock and Announce – you must knock and announce, unless your warrant specifically states that the danger/destruction of e vidence is almost guaranteed by reasonable suspicion 1. Need reasonable suspicion to believe the suspect is present at his his residence at the time they enter to t o arrest. ii. Anticipatory Warrants – warrant warrant only valid after a triggering condition based on probable cause that the evidence will be there at a certain time c. Seizures of People i. An arrest warrant is unnecessary for arrests in public. ii. Absent exigent circumstances, an arrest warrant is required in order to arrest a person in her own home – Payton Payton Violation d. Issuance, Content, and Execution of Warrants i. Neutral and Detached Magistrate ii. Pleaded with Particularity → Place to be searched/items searc hed/items to be seized iii. Probable Cause 4. REASONABLE SEARCHES WITHOUT WARRANTS a. Searches Incident to Arrest (SILA) i. Applies so long as there is probable cause to arrest ii. In the Home – Arrest Arrest someone in the home, you can search in their grab zone (Chimmel), you can also do a protective pr otective sweep, i.e. look for PEOPLE all over the house (Buie) iii. Automobiles - when a policeman 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. b. Searches for Arrestees i. Arrest ∆ in a 3rd Party house - an arrest warrant (opposed to a search warrant) is adequate to protect the Fourth interests of a person not named in the warrant when their home is searched without their consent in an absence of exigent circumstances. Steagald 1. The third party has a reasonable expectation of privacy in the home and has standing to suppress. ii. Arrest ∆ in his own Home - an arrest warrant is required in order to arrest a person in her own home Payton c. Exigent Circumstances
i. Three Reasons 1. Hot pursuit of a suspect; susp ect; 2. stop destruction of evidence; 3. prevent harm to others ii. Exigent Circumstances only relieve the government of the warrant requirement; there still must be probable cause if the subsequent search is to be constitutional iii. The nature of the exigency determines the scope of the search. iv. No police created exigencies d. Vehicle and Container Searches i. Automobile Exception to Warrant Requirement - officers may search anywhere in the vehicle if there is probab le cause to believe that contraband is contained in those vehicles ii. Inventory Searches - may not be used to search for evidence of criminal cr iminal activity. They must be conducted pursuant to standardized standar dized departmental regulations so as to limit officer discretion and protect against using automobile inventory searches as a ruse for criminal investigations. iii. Mobil Home – Totality, Totality, but generally if its hooked up to utilities, it’s a home; if it’s on the road/mobile it’s a vehicle iv. Containers - If you have PC to search the car and you find a bag, you can search it. If you have PC to search a container, once you find the container, you must stop searching the car. shneckloth v. busamonte→ e. Consent Searches i. Voluntary ii. Totality of the Circumstances Test: how many officers, tone, setting, etc. iii. Who can consent: anyone with apparent appare nt authority f. Plain View Doctrine – if if the officers have consent c onsent or come in bc of an exigency, ex igency, and see shit in plain view then t hen u out of luck; must be immediately apparent that it is contraband. 5. BALANCING APPROACH a. Seizures - A person is seized only on ly if, in view of all the circumstances, c ircumstances, a reasonable person would have believed that he was not free to leave b. Terry Stops i. Showing Necessary: Reasonable Suspicion that crime is afoot→ you can stop the suspect, and question him. To search you must have reasonable belief after questioning that the suspect is is armed and dangerous! ii. Scope: If the stop standard is satisfied, the officer may "stop" the suspect, ask him questions, and subject him/her to a pat-d own search for weapons if the questions do not produce satisfactory answers. 1. officer is not allowed to conduct a thorough search searc h of the suspects and any belongings that they have with them. limited search,
designed to ascertain the presence of weapons, is all that is permitted. 2. a police officer may not slide or manipulate suspicious items that she happens to notice during the course of the pat down; nor can she pull any packages out of the coat to examine them further unless she has probable cause that the item is contraband. c ontraband. iii. Terry in the Whip - (officers can Terry frisk a vehicle when it’s in “close where person range”). The perimeters of Terry and SILA are the sa me – where could reach a weapon. c. Informant’s Tips - need to have the t he anonymous tip AND personal observations of circumstances under Terry to justify the investigatory stop of a ∆’s car or a person (totality of circumstances – quality quality and quantity qua ntity of information). Standing alone, a tip would not warrant reasonable suspicion that a stop is appropriate. d. Special Balancing i. Schools – requires requires reasonable suspicion – children children have a diminished d iminished expectation of privacy while at school ii. Checkpoints - more likely to be found reasonable reas onable if they minimize or constrain officer discretion, especially through neutral criteria for its exercise, minimize the degree of intrusion to vehicle occupants and serve contro l. important governmental interests. No general crime control. iii. Drug Testing – has has always been held as a search; no legal burden of proof when special need is involved. 1. Is the drug testing reasonable? iv. Border Searches – no no suspicion necessary; searches at our borders without probable cause and without a warrant are nonetheless “reasonable” 1. Vehicles, persons and effects can be thoroughly searched, including opening containers or compartments and disassembling vehicles, but strip or body cavity searches require a higher degree of suspicion. v. DNA – must must be part of documented police p olice procedure and person was arrested for a serious offense (violent felonies); goal is identification vi. Higher than Usual Standards: 1. Seizure using Deadly Force – a. Threatens officer with a weapon OR b. If PC to believe crime was committed c ommitted involving infliction or threats of serious physical harm and that harm still exists to the community rn 2. Blood Samples – no no per se rule, compelling blood b lood samples is fine so long as there is a need to t o collect diminishing evidence and it doesn’t pose a threat or harm to person; def a search 3. Compelled Surgical Procedure – look look at totality, t otality, is this the only evidence, is there a less invasive means, etc. 6. DUE PROCESS AND CONFESSIONS – a. 5th Amendment – privilege privilege against self-incrimination th b. Due Process 14 – government government (feds/states) may not impede on the liberty, life, or property w/o DP
c. Ashcroft – look look at the circumstances c ircumstances surrounding the interrogation (time, place, duration) your confession must be voluntary, if its coerced, there is a DP violation v iolation i. Coercion – must – must involves state action; a person’s will has been overborne ii. Voluntary – police police can use trickery, so long as it’s not coercion (mislead regarding sentencing or $$) 7. MIRANDA – prophylactic prophylactic measures; to have Miranda rights you must be: a. In custody - questioning by the police when w hen the suspect is detained for a period longer than that of a Terry stop; When a reasonable r easonable person would say they are deprived of freedom of movement in any significant s ignificant way. i. Traffic Stop is not custodial custodial interrogation b. Interrogation - subjected to either express questioning or its functional equivalent; extends only to words or actions on the part of police officers that they should have known were reasonably likely to elicit e licit an incriminating response c. Miranda Warnings NOT Required i. Person “is unaware that they are speaking to a law enforcement officer (like undercover officer) Perkins ii. routine booking questions (because they are not n ot really interrogation) iii. Public Safety Exception - if a question about a weapon was “reasonably prompted by a concern for public safety” under the circumstances of the arrest, the arrestee’s answer to the question is admissible evidence, as well as any weapon that is is located as a result of the questioning. questioning. Quarels d. Waivers i. A totality of the circumstances test is used: “the duration and conditions of detention, … the manifest attitude of the police t oward ∆; physical and mental state of ∆; the diverse pressures which sap or sustain ∆’s powers of resistance and self-control ii. must be “voluntary, knowing and intelligent.” iii. The state must prove waiver by a preponderance of the evidence. Connelly iv. A waiver may be implied through oral statements and conduct, and does not have to be in writing. Butler v. A waiver may be inferred from the fact that the suspect eventually makes statements to the police. Berghuis e. Invocations and Protections i. Miranda Invocation - Pigs must honor an arrestee’s invocations of the right to silence, the right to counsel, or both, b y “cutting off” the interrogation. 1. Post-Miranda cases have resolved three questions about a su spect’s invocation of rights: r ights: a. an invocation of counsel or silence (police are barred from initiating discussions and seeking waivers); b. police may seek a waiver after either type of invocation when the arrestee initiates a generalized discussion about the investigation with the police; and c. an invocation of either silence or of counsel c ounsel must be unambiguous. If an arrestee’s invocation does not satisfy
these standards, police may ignore the invocation and continue to interrogate. ii. Unambiguous Invocation - An adequate invocation occurs when a reasonable police officer in the circumstances would understand the statement to be a request not to talk to the police (i.e. Leave me alone pig! Not, I might want a lawyer…Davis) iii. Invocation of Right to Silence - “a blanket prohibition” against questioning after invocation of the right to silence would inhibit p olice investigations and prevent suspects fr om om making “informed and intelligent assessments” of their interests. Moreover, a resumption of questioning after a time lapse permits the suspect to retain “control” over the t iming, subject and duration of an interrogation, in order to c ounteract “the coercive pressures of the custodial setting.” iv. Invocation of Right to Counsel - The invocation of silence shows that the suspect does not want to talk, while the invocation of counsel is an indication by the suspect that he feels incapable of speaking to the police p olice on his own. Because of the Court’s concern c oncern that a suspect asserting his right to counsel is not as likely to change his mind for reasons other than police pressure, the Court accords the police less flexibility flexibility (after the invocation) therefore, the police cannot interrogate the suspect unless he initiated the contact. Edwards. 1. Edwards rules remain in effect until the suspect is released from jail and before the end of the fourteen days of release. After the fourteen-day period, the police may resume questioning quest ioning without the suspect re-initiating the conversation. 8. CONFESSIONS AND THE RIGHT TO COUNSEL a. 6th Amendment – Right Right to Counsel, (separate from Miranda/5th) b. Attaches – upon upon the commencement c ommencement of adversarial judicial proceedings i. initial appearance, formal charge, preliminary hearing, indictment or information; once adversary proceedings are instituted, law enforcement officials or their agents may not interrogate the accused in the abse nce of counsel, unless the accused has validly waived that right. r ight. 1. If you never ask for counsel, you have never invoked ur u r right 2. Offense specific! c. Massiah – i. bans the deliberate elicitation of statements statements by undercover police agents; ii. to conduct questioning, the police must obtain a Sixth Amendment waiver; iii. if police officers do not obtain such a waiver, wa iver, they may not engage in “deliberate elicitation” of incriminating statements. 1. “Elicitation” includes both express questioning and other kinds o f police statements that are “tantamount to interrogation.” interrogation.” (Christian Burial Speech – Brewer Brewer v. Williams) iv. Massiah Waiver Standard - an intentional relinquishment or abandonment of a known right or privilege th d. 5 vs. 6th re Right to Counsel C ounsel - relates to the treatment of persons who are questioned by undercover police agents. age nts. The Perkins exception to Miranda M iranda allows
the “interrogation” by undercover agents of persons in custody. Massiah does not allow the “deliberate elicitation” of incriminating statements by undercover agents from persons who possess 6th rights, regardless of whether the suspect is incarcerated at the time of questioning.
ATTACHES TO CUSTODY OFFENSE SPECIFIC 2nd INTERROGATION WAIVER
STANDARD UNDERCOVER CASES STANDARD
Sixth Amendment Adversarial Proceedings Don’t need custody to trigger Yes
Fifth Amendment / Miranda Custodial Interrogations (earlier) Need custody to trigger Non-offense specific
No Intentional relinquishment or abandonment of a known right or privilege Deliberate Elicitation (less trickery) Informant is purposely trying to extract the statement under government’s government’s authority
Yes Knowing, intelligent and voluntary
Interrogation (more trickery) Passive listener – if if you trust someone, you’ve run the risk of them going to the authorities
9. IDENTIFICATIONS a. 6th Amendment Requirement – counsel’s – counsel’s presence only required at live lineups (not show ups), and only when these are conducted after formal proceedings in the case have begun (usually indictment). There is no Sixth Amendment requirement for counsel's presence at photographic (i.e., non-live) identification procedures, regardless of when these are conducted. i. Lawyers job is to observe and use id procedure to impeach witnesses on cross at trial b. Due Process Requirement - All identification procedures, whether in person or b y photo, must be assessed for reliability reliability as a matter of due process - including whether they were suggestive. Even when unconstitutional u nconstitutional pre-trial identification procedures have been used, subsequent "in-court" identifications are only excluded if they are not "reliable." i. Show ups are almost always suggestive absent a showing of absolute necessity by the state (witness about to die, etc.) 10. EXCLUSIONARY RULE a. The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary ex clusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. b. Weeks → exclusionary rule created; discusses constitutional basis c. Mapp → exclusionary rule applicable to the states; discusses policy, deter unreasonable searches and seizures by the state i. Purpose - deter unlawful searches/seizures by police ii. Standing- must have a reasonable expectation of privacy! 1. Ownership isn’t enough to establish privacy → you can’t argue that your crack pipe was in her bag and she has a reasonable expectation Alderman 2. No automatic standing, must look at totality of where you are
3. Overnight guest has has expectation but a brief visitor has has no expectation of privacy Carter, Rakkas 4. Passenger has no legitimate expectation of privacy in a car search. Once that passenger is seized, he/she can challenge c hallenge the illegality of the seizure, but he/she still cannot challenge the t he search. If a seizure is unlawful and something is found because of that seizure, se izure, the things found are suppressed (because of the illegality involving the seizure). Brendlin d. Good Faith Exception - allow evidence in when officers have reasonably relied in good faith on a warrant issued by a neutral and detached magistrate even if the warrant is subsequently determined to be invalid. Leon i. When Good Faith Doesn’t Apply 1. Mere negligence in warrant, if becomes a systematic s ystematic issue may rise to level of reckless disregard 2. if the magistrate misled by information in an affidavit that the affiant knew was false or would have known know n was false except for his reckless disregard of the truth. 3. issuing magistrate wholly abandoned his judicial role; 4. the affidavit underlying the warrant is so lacking in probable p robable cause that no reasonable police officer would have ha ve relied on it; 5. the warrant is so facially deficient (failing to particularize the place to be searched or the things to be seized) that the execut ing officers cannot reasonably presume it to be valid. e. Impeachment Exception – You You need to have a 5th amendment issue here, i.e. a self incriminating statement i. Statements - an unwarned statement was admissible during crossexamination to impeach the credibility of the defendant’s testimony if the statement was not obtained in violation of Due Process, i.e., if it was g iven voluntarily (without coercion) Harris ii. Evidence – evidence evidence suppressed as fruit of an illegal search may be used to impeach. Havens iii. The impeachment exception applies only to impeaching the defendant and and not to defense witnesses. James iv. A statement coerced in violation of Due Process cannot can not be used for impeachment. Mincey f. Miranda Exclusion Doctrine – court court created doctrine that furthers the prophylactic policy of Miranda i. Question First and Warn Later Later - warnings that are given “midstream” between two interrogations that are “close in time time and similar in content” do not “reasonably convey” the Miranda M iranda rights. Basically, the polices way to get around giving Miranda = no good Siebert ii. New and Distinct Experience - good-faith mistake in failing failing to give warnings before a single comment by an officer prompted an u nwarned admission during arrest in his home. The warnings given later at the station were “adequate,” because the station house interrogation was deemed to be a “new “ new and distinct experience” Elstad
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1. applies only when different periods of interrogation form one continuous whole. The use of Miranda M iranda warnings at subsequent periods is sufficient sufficient to offset the failure to do so at an earlier period of questioning, if questioning is sufficiently attenuated then you must give Miranda at the later and may not bring in the earlier comments. Fruit of the Poisonous Tree Doctrine – a court may exclude from trial any evidence derived from the results of an illegal search; an extension of the exclusionary rule, which, subject to some exceptions i. the poisonous tree is the initial bad act by the th e government; direct evidence evide nce the poison fruit is then gleaned from the tree; a nd then derivative evidence is then gleaned from the direct. Independent Source Doctrine - Evidence that is not causally linked to unconstitutional governmental activity is admissible pursuant to the independe nt source doctrine. i. The doctrine applies if the challenged evidence evide nce is: 1. First discovered during lawful police activity; a ctivity; or 2. Initially discovered unlawfully, but is later obtained lawfully in a manner independent of the original discovery. adm issible Inevitable Discovery Doctrine - Evidence obtained illegally may be admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence “ultimately or inevitably ine vitably would have been discovered d iscovered by lawful means.” ot herwise qualifies as fruit-of-theAttenuation Doctrine - evidence that otherwise poisonous-tree may be admissible if its its connection with the illegal police activity is so attenuated (far-stretched like a rubber band) that it is purged of the taint. i. Factors to consider for attenuation atte nuation are: 1. Temporal proximity of the illegality and the acquisition of evidence 2. Intervening events and circumstances (the presence of) 3. Act of free will 4. Flagrancy of the violation
