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Constitutional Criminal Procedure

Prof. Schmolesky Spring 2007

Exclusionary Rule
Federal: Enforced when files a motion to suppress saying that evidence was obtained on unconstitutional grounds TX ER: TX Code of Criminal Procedure 38.23 (More below) 4Am is silent re: remedy ER is judge-made Wolf v. Colorado No implicit remedies in 4Am; states are free to experiment w/ remedies Mapp v. Ohio A warrantless search is presumptively unreasonable (lots of exceptions); Court says all states must have ER Rationale behind ER: 1. Deterrence: We are trying to deter illegal conduct by police 2. Judicial Integrity: dont want courts to be involved in something shady Something either violates the 4Am or it doesnt and if it does, then we require ER US v. Leon Now we have categories of 4Am violations RULE: Right and remedy are divorced; some 4Am violations require ER and some dont Good Faith Exception: If officer relies in good faith on the warrant (this is objective), then the ER doesnt apply Officers must have reasonable knowledge of what the law prohibits Before we worry about whether there is good faith exception, must have a 4Am violation Exceptions to Good Faith: If officer misleads the magistrate, then it is not good faith b/c the magistrate has to rely on what officer tells him If the warrant is so facially deficient that no reasonable officer would think it was valid, then good faith does not apply When officer exceeds scope of warrant ***The police dont have to be right, they must just act reasonably and within the scope of the warrant Where the magistrate wholly abandons his neutral role, good faith doesnt apply GF Exception applies in two circumstances:

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1. When police are acting in objective good faith reliance on warrant issued by magistrate 2. If police are acting in objective of good faith reliance on a statute that authorizes a search or seizure If there is error by the police ER will generally apply If there is error by someone other than the police ER will generally not apply TX 38.23 more favorable to b/c it provides more protection
Art. 38.23. [727A] EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. TX Good Faith Exception (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Must always argue both Federal rule and TX Rule TX Good faith applies only where there is a warrant issued by a magistrate based upon probable cause (so says the TX CCA) Cases addressing when ER can/cant be used

Calandra:

ER does not apply to grand jury Calandra Test: Would adding exclusion in this setting be worth the cost? Janus: ER does not apply to a collateral civil suit Lopez v. Mendoza: ER does not apply in deportation hearings These cases: 1. Limit use of ER to prosecutions CIC 2. Lay foundation for theoretical basis of decisions like Leon Plymouth Sedan v. Penn. civil forefeiture; action taken against a piece of property; so closely related to the criminal proceeding that ER remedy applies What is it that is subject to suppression? Evidence is the only thing that can be excluded Threshold Issues (Requirements for Applicability of 4Am) Page 2

1. There must be state/gvt action 2. The person who is claiming a 4Am violation must have sufficient connection to claim the benefit of US law (citizenship, people lawfully in the country) 3. must have standing to raise 4Am claim 4. It must be search/seizure in order for claimant to vindicate right against unreasonable search/seizure Private Party Searches: private investigator; babysitter; etc. no 4Am argument against private party actions US v. Verdugo 4Am isnt limited to US territories US citizens abroad are entitled to 4Am protection Alvarez Even if there is an illegal arrest, cannot suppress a person, only evidence

What is a Search/Seizure?
***Katz v. US*** 1. FBI puts listening device on outside of phone booth 2. MAJ: 4Am protects persons, not places look to see if person is exerting an expectation of privacy society would consider reasonable 3. It doesnt matter if there is/isnt physical penetration the point is he expects privacy 4. Reasonable Expectation of Privacy not very bright line rule 2 parts to search: 1. Individual must show subjective expectation of privacy 2. It must be an expectation that society is willing to regard as reasonable Standing: has theoretically been abolished and replaced with REoP KEY to SEARCH/SEIZURE: good chance of having search/seizure if you use some device not commonly available that reveals info from location where someone would have a REoP Important to consider all of the circumstances Cases: Oliver argues Open Fields Doctrine should be eliminated b/c of Katz; court said it wasnt a search/seizure b/c there was it was not reasonable to expect fences, etc., to keep people out; so no reasonable expectation of privacy in open field In TX: would argue under 38.23 that the officers violated a law of the State of TX by trespassing [see 38.23(a)]; therefore the evidence could not be used (see also State v. Hobbs)

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Dow Chemical helicopter & sophisticated camera; not search/seizure b/c any person w/ means could do that Kyllo search/seizure using thermal reading US v. Karo installation of device is not search/seizure, but continued monitoring of a beeper is CA v. Greenwood There is not REoP in ones garbage Smith v. Maryland No REoP when you call someone b/c you have conveyed the numbers to the phone company Horton v. Goose Creek students dont have REoP in lockers and outside of cars (when there are drug dogs); they do have a REoP re: the dogs sniffing the students Mere Evidence Rule idea that things officers/gvt officials could validly seize had to fir into one of three categories: 1. Fruits of criminal activity 2. Instrumentalities of crimes 3. Contraband Warden v. Hayden MER is no longer good rule under this case; it is expanded to anything probative of criminal activity Boyd police cant seize s own statements NOT good law anymore! 5Am protects Zurcher v. Stanford Daily party was not involved in criminal activity but has evidence of the criminal activity Search Warrant vs. Subpoena SW: if evidence is there, likely to get it Subpoena: dont need probable cause Court says police could use search warrants; 1Am doesnt make you immune from gvt searches; not many places are immune from gvt searches (maybe atty office)

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TX Re Search of Warrants & Newspapers Some level of protection for media outlets against search warrants would have to get subpoena duces tecum
18.01(e) A search warrant may not be issued under Subdivision (10) of Article 18.02 of this code to search for and seize property or items that are not described in Subdivisions (1) through (9) of that article and that are located in an office of a newspaper, news magazine, television station, or radio station, and in no event may property or items not described in Subdivisions (1) through (9) of that article be legally seized in any search pursuant to a search warrant of an office of a newspaper, news magazine, television station, or radio station. Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for and seize: (1) property acquired by theft or in any other manner which makes its acquisition a penal offense; (2) property specially designed, made, or adapted for or commonly used in the commission of an offense; (3) arms and munitions kept or prepared for the purposes of insurrection or riot; (4) weapons prohibited by the Penal Code; (5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia; (6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law; (7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state; (8) any property the possession of which is prohibited by law; (9) implements or instruments used in the commission of a crime;

4Am Standing US v. Payner must have someone who has 4Am personal interest to assert claim We still use standing but court has struck down that vocabulary Now we say REoP did this particular person have a REoP (without some sort of standing requirement, ER would be must broader) Page 5

There is no automatic standing must establish Rakas v. Illinois Jones if you are legally on the premises, you have REoP applied to an apartment where Jones had key and a degree of control This is a car Rakas didnt have REoP b/c he didnt have a key; no showing he had been in car before; etc. Fewer s can assert 4Am b/c you have to have some sort of privacy interest mere passenger in a car doesnt have sufficient interest TX: You do have standing as to stop of a car MN v. Olson nonresident, overnight visitor has some sort of REoP, but not as extensive as the owner

Probable Cause
Cant meaningfully define PC For PC need to establish: 1. Information from credible informant 2. Reliable basis of knowledge PC is collective officer conducting search/making arrest doesnt personally have to have PC Illinois v. Gates letter from confidential informant; SC rejects two prong Spinelli test and looks to totality of the circumstances (b/c PC is a fluid concept) Aguilar/Spinelli if relying on informant must have reason to think this person is credible and has basis of knowledge Gates going to be easier to demonstrate PC b/c it is deliberately more ambiguous How recent is the information? Staleness not really as much of a concern w/ warrants as it is w/ searches ***Cannot rehabilitate inadequate showing of PC if you didnt tell the magistrate*** AFFIDAVIT: typically the officer will fill out addidavit saying this is what I know and I think it adds up to PC TX Four Corners Doctrine Woods TX requires PC to be in written affidavit by applicant for the search warrant If there are further things discussed b/w the officer and magistrate, it is up to the officer to make sure it gets into the warrant

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Good Faith Exception Leon Ct said there was no PC but officers acted in good faith Does not apply if officers lie to magistrate o Franks v. Delaware - must show officer lied or acted w/ disregard for the truth PC requires officer to be reasonable, but not correct Ybarra v. Illinois FACTS: Y was at bar when officers went to execute warrant Ct says that just b/c Y is close to person to be searched doesnt mean he can also be searched; for officer to protect himself, he can give the person the option to leave When they frisked Y, they found drugs purpose of frisk is to find weapons that might harm officer/others and cigarette pack is not something that seems like a weapon Plain Feel Doctrine Maryland v. Pringle P in car where drugs are found and confesses that drugs are his; it is reasonable for officer to infer common enterprise w/ the three men Lippert v. State (TX) presence is not probative enough in this situation where there is a larger structure than a car Particularity Requirement: warrant must particularly describe the things to be searched & seized want to avoid general warrant Individuals present in the area retain their 4Am rights and arent covered by warrant in many circumstances

Purposes & Procedures Search & Arrest Warrants

Neutrality: PC must be determined by a neutral & detached magistrate WARRANTS: Allows officer to find out whether or not there is PC and existence of warrant will give great deal of immunity against search and suppression Provides proof of officers authorization and notice to person subject to search & scope of search Return on the Warrant: copy of warrant and inventory of what officer took, how long it took; allows review of search/seizure Particular Description of Place to be Searched Particularity Requirement Depends on circumstrances and nature of item involved If item protected by 1Am, greater particularity required Place to be searched must be described so that officer w/ search warrant can with reasonable effort ascertain and identify the place intended. Page 7

TX Particularity Requirement - 18.04

WARRANT. A search warrant issued under this chapter shall be sufficient if it contains the following requisites: (1) that it run in the name of "The State of Texas"; (2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched; (3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and (4) that it be dated and signed by the magistrate.

Maryland v. Garrison 4Am doesnt require officers to be right; just requires them to be reasonable Knock & Announce Requirement (CL Rule) Wilson v. AR USSC said knock and announce rule was requirement under 4Am Timing of Warrants TX - 18.06 EXECUTION OF WARRANTS.
(a) A peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate. (b) On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.

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Warrant must be executed w/o delay and w/in 3 days of time of issuance expanded in 18.07 so that day of issuance and day of execution dont count Days you have: Issuance Day 1 Day 2 Day 3 Execution If there is a warrant burden on and presumptively reasonable If there is not a warrant burden on gvt and presumptively unreasonable EXCEPTIONS to Warrant Requirement (Sometimes search/seizure is reasonable b/c of lack of PC BUT reasonableness trumps! Overriding requirement of 4Am is reasonableness) PLAIN VIEW EXCEPTION observation by officer that doesnt constitute a search if it is reasonable to make the observation and it must be immediately apparent What about if they find unanticipated contraband may not have to get another warrant to seize it b/c if the item is in plain view, it is reasonable for officers to take it w/o another warrant If the search is w/in the scope of what justified the officers being there in the first place, the search is reasonable Horton v. CA Court says inadvertent shouldnt be part of the plain view requirement b/c it doesnt do anything to protect privacy interests of the parties involved Arizona v. Hicks EXIGENT CIRCUMSTANCES: if there is some sort of emergency that requires police to act w/o delay; reasonable for officers to act immediately Immediately Apparent officers look around and see two very expensive stereo systems; it is not immediately apparent that they were items of a crime The officers would have to move the systems to see the serial numbers on the equipment Plain Field outer garment pat downs; justified on reasonable suspicion Justification for Arrest Watson many times there is not warrant requirement; under CL it is clear that at least for felony offenses you could make an arrest in a public place w/o obtaining a warrant

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Payton Riddick to cross the threshold of the home, must have an arrest warrant; the warrant is enough to allow the police to enter If you are arresting the person named in the arrest warrant you may to go that persons home and enter to make arrest but you must the arrest warrant to enter the home Lankford police have warrant for two fugitives and enter 300 homes looking for them Warden v. Hayden if the police are in hot pursuit (have info or chased someone from scene of the crime), then they can enter the home belonging to the person you are chasing or any other home So the suspect can run back inside his house but the police can chase him b/c they are in hot pursuit Santana hot pursuit doesnt require much Atwater v. City of Lago Vista Police officer could have given a ticket, but he chose to arrest and it is up to officers discretion TX: There are two offenses for which officer is required to give a ticket: 1. Speeding 2. Open container of alcoholic beverage But the requirement only applies if the offender has a valid TX drivers license Tennessee v. Gardner If the suspect has committed a crime of violence or shown immediate threat to an officer may shoot; sometimes they can shoot and sometimes they cant; has to do w/ reasonableness under the 4Am Gerstein v. Pugh Judge must review whether the arrest was based on PC and do promptly b/c of intrusiveness of arrest Gerstein Hearing: kind of determination that would be made by a magistrate if officer had asked for a warrant; like ex parte hearings; based on hearsay, affidavit, etc.; not subject to cross-X by the other side What can the officer do after the arrest? FIRST ZONE CHIMEL AREA ***Chimel v. California*** C comes home and officers arrest; they proceed to search the entire house, finding evidence of the crime for which he was arrested They did not have a search warrant The court said that you cannot do this the search area must be w/in the suspects immediate control The purpose is to allow a search within the reaching distance to prevent harm to officers or others and prevent destruction of the evidence

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Chimel Area: defines the appropriate scope of search incident to arrest o It is like a protractor w/ the as the center; the area that is reaching + lunging o The right to search the Chimel area is automatic

If suspect moves the Chimel area moves w/ him But if there is no valid reason for movement by the suspect (i.e. officers force suspect to walk to certain area), then it is not w/in the Chimel area b/c it is being manipulated by the officers SECOND ZONE Maryland v. Buie Allows officer to do protective sweep to find anyone/anything in the immediate adjacent area Purpose is to find people Buie right is as automatic as the Chimel right THIRD ZONE Beyond that beyond immediate adjacent requirement of Buie, but must have reason to think someone is there Chimel Area Beyond that Buie Area immediately adjacent

We allow a search incident to arrest for two reasons: 1. Suspect might have a weapon 2. Suspect could get to evidence that he could possibly destroy Searches of homes incident to arrest Vale v. Louisiana PC is not enough to get you into a house to search you need a warrant Buie allows you to go inside a house if you are looking for a person Segura v. US the courts do not require officers to use the lease invasive means to accomplish their purpose it is either reasonable or unreasonable under the 4Am Searches of cars incident to arrest Officers have great authority to search a car; even when just making stop for traffic violation

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NY v. Belton if the police make an arrest outside an automobile, then the Chimel area includes the passenger compartment, including closed containers, but not the trunk Thornton v. US extend the area b/c the was recently in the vehicle and the officer searched it Knowles officer gives ticket and then searches the car and turns up contraband; that is not ok If there is a reasonable basis for police action, we are not going to inquire as to the true motive of the officer Automobile Exception if officers think based on PC that the car contains evidence of criminal activity, then officers can search and the trunk is w/in the scope officers can look anywhere the item might reasonably be Carney House on wheel is a vehicle (not a house) Seizing items incident to arrest If there is PC, then may seize suspects briefcase (so that it doesnt disappear) but in order to open it, they must get a warrant Summary: House need warrant to search Briefcase can seize, but need warrant to open Vehicle (auto exclusion) even if no exigency (even if car is no longer mobile) you do not need a warrant

Other areas Just because you are away from home you do not lose your expectation of privacy; you have a reasonable expectation of privacy in some other places/things Sanders container doesnt lose protection just b/c it gets put into a car Ross police knew that somewhere in the car he had drugs, so it is a vehicle issue and not a container case overruled in Acevedo Acevedo as long as it is a closed, opaque container it is subject to the warrant requirement away from the vehicle; there is no difference between a brown paper sack and an attach case RULE: Officers can search a closed container w/in a car if it is reasonable that the item they are looking for is there EXAMPLE: If officer makes a stop for a traffic violation and there is no other evidence (all we have is the violation) officer can make an arrest. At that point he can search anywhere

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in the Chimel area and under Belton (w/o regard for particular circumstances) the officer can search in passenger compartment, meaning closed containers in the passenger compartment and even containers of the passengers Inventory Searches Cars (Impoundment) Impoundment must be necessary Officers motivation is a relevant factor There must be a departmental policy (must have that kind of consistency) neutral procedure that has been developed by the administration Bertine Justification for inventory searches: 1. Protect the officers from claims that they stole property left in the car 2. Protect the property 3. Public safety/community caretaking TX: the police can impound: removal from accident scene; parking violation; owner/driver requests/consents to impoundment; auto stolen or reasonable belief it is stolen; abandoned; hazard; driver removed and placed under custodial arrest and no other alternatives are available

Scope: has the search been contained w/in reasonable bounds that justify an auto IS in the first place? TX: Autran v. State during an IS officers are not authorized to open closed containers Gill v. State police impounded a car and wanted to open the trunk; they went through the back seat to get to the trunk; that is not ok Steven v. State this kind of search was upheld when the officers had the key These cases are very fact sensitive! Jail Inventory Illinois v. Lafayette it is a search justified w/ PC b/c of concerns re protecting the persons property and security of the jail US v. Edwards after E had been put into the jail population and he had already been given his prison uniform, etc. officers came back and got his clothes to search for paint chips; you cannot do this b/c you must have neutral reasons for the IS The REAL JUSTIFICATION in this instance: exigent circumstances; shirt may be tossed somewhere or no longer available and they dont want to risk losing evidence Cupp v. Murphy blood under the fingernails case

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Rochin v. CA forcible extraction through the administration of a solution that induced illnedd was not ok; whenever there is a situation where police use tactics that are arguably shocking, look to Rochin analysis Rochin requires: 1. Deliberate conduct 2. Deliberate infliction of pain or excessive violence Schmerber v. CA blood-alcohol level 4Am argument no warrant to get the BAL

Administrative Inspections
Keys to AI 1. Neutrality of treatment a. We are not arbitrarily singling someone out 2. Balancing Test the gvts need for the searches against the intrusiveness of action taken by officer (Need vs. Intrusiveness) a. If the intrusion is low and need is high likely to be reasonable w/o PC warrant b. As the intrusion goes up or need goes down likely that more traditional requirements of 4Am will go up

Need

Higher 4Am standards

Intrusiveness Camara Building code requirements; to make the system meaningful, must have inspections Requirement: sometimes a warrant is required even though PC is not required If the premises to be inspected are the kind that were meant to be covered by the procedure, then this person is being treated the same as everyone else PC may be: It has been 10 years since we inspected this building; there is a requirement that we inspect every building every 10 years and the PC is that the buildings on this block are up for inspection this year Border Search Cases Authority for gvt officials to engage in unindividualized suspicion b/c need is great Can ask people to open suitcases, trunks, etc. Real Suspicion strip searches Clear Indication body cavity search

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Two ways of going about these searches: 1. Roving patrol 2. Fixed checkpoint Fixed checkpoint more likely to get court approval b/c it is more neutral than the roving patrol (which is subjective) Once the car is stopped: 1. Vehicle search 2. Brief inquiry Brief inquiry is much less intrusive

Stop & Frisk

Terry v. Ohio Now dealing with pre-arrest encounters FACTS: officer sees the men on the street who were looking in the store window and just acting shady; he did not have PC b/c he didnt see any criminal activity; officer approaches the men and asks them some questions o ***Then the officer pats down Terry; he detects something that might be a gun; it is a gun and he now has PC to arrest; the detection justifies the reaching in and taking TC denies suppression motion; SC affirms What do we allow police to do when they dont have PC? o argument: police can do nothing until the police have PC they can only engage in action(s) that do not constitute search/seizure o Gvt. argument: we can do whatever we want until the arrest occurs and the 4Am comes into play The Court rejected both arguments this case represents a policy compromise The court attempts to say that police can act w/ less the PC; but what the officer can do is less as well Theory of compromise: great need for more flexible approach and response by police officers not sufficient to say when you have PC you can arrest; but before that you cant do anything that constitutes search/seizure Terry stop & frisk must be less intrusive than an arrest o It must be brief cannot engage in Chimel area exhaustive search; limited to pat down type of search and no automatic right to engage in the pat down Court says there is search/seizure whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person. Officer does not necessarily need PC but there must be reasonable suspicion RS is not as high of a standard as PC (doesnt take as much to get RS) o Must have specific and articulable facts

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If the officer has RS, a brief detention is okay and the outer pat down is also ok; either suspicions will be resolved and officer will let him go OR nothing dispels the suspicions and RS ripens to PC, leading to arrest

In analyzing these encounters, must decide what level of intrusion has occurred: 1. Encounter: simply a consensual b/w the officer and a private citizen and there is no search no 4Am requirement 2. Detention: goes far enough that it is on 4Am radar but only to the level of an investigatory stop RS and no warrant 3. Arrest: PC Florida v. Bostick B on bus and officers get on Free to Leave Test all B has to do is get up and leave There is no gvt action that confines B to the bus INS v. Delgado officers go to a factory where they think illegal aliens are working; there is no gvtl action that confines them Bostick changes Free to Leave to Free to Refuse There must be state action that accounts for the confinement CA v. Hodari we need to things for a stop/detention: 1. Actual application of force that detains 2. Submission to that authority Wardlow individual is free to leave unless the officer has a justification to detain you; however, flight is different than the decision to walk away calmly b/c it raises a different kind of suspicion Florida v. JL Informants they are used in Terry situations and less is required than other issues w/ informants Generally an anonymous tip is going to be acceptable Alabama v. White o An informant who gives info that could be innocent activity is enough b/c it is more specific and it is a prediction of things that have not yet happened

***Hensley Terry stops are not limited to RS of crimes that about to occur/are occurring/just occurred RS here was that he appeared to match the description of one who committed a crime months before

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As long as there is RS that crime is about to occur or has occurred, there is justification for detention

What can an officer do during a detention? Ask person to ID themselves o If he refuse, officer may take reasonable steps to ID the individual can reach into his pocket and get his wallet (Hibel) May ask person about things that cause officer to be suspicious Does not have to give Miranda warnings Officer may ask to engage in a search (Ohio v. Ramirez) o Non-custodial traffic detentions are analogous to Terry-type stops Pat down (outer garment) limited; have to have RS to pat down o Dickerson if officer makes a plain feel observation (even as to contraband) then taking that item is reasonable o Long where the officer has RS to stop a car and RS to believe there is a weapon, officer may search anywhere in the passenger compartment where the weapon might be limited Bring in eye witnesses to place that you have detained the individual Can do something to verify a crime has taken place The person does not have to respond to officers questions ***US v. Place*** Is dog sniff of a container a search/seizure? NO Difficulty: unduly long detention of the suitcase; since officers knew in advance where Place would be, they could have had a dog there ahead of time and limited the intrusion Two important things: 1. If there is a less intrusive way of accomplishing what they are doing, might make Terry encounter unreasonable 2. The court has authorized temporary detention of personal effects under Terry Caballes Question of duration is often raised to discuss reasonableness While the court is reluctant to put a specific time limit on what is reasonable, somewhere around 15 minutes is probably reasonable; but past that the court will scrutinize whether the detention needs to be backed by PC b/c it is at that point an arrest rather than Terry encounter Very fact specific are police diligently pursuing reasonable means of determining if there is a problem, etc.?

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Consent Searches
Exception to 4th amendment requirements (PC/Warrant) if the consent was voluntary Cops dont need RS or PC to ask for consent Cops can walk up to everyone on the bus w/o a warrant and ask for consent. Consent is an issue of fact Questions to ask: 1. Was the consent voluntary? 2. Was the consent given by an individual that has the authority to consent? (Did the police reasonably believe the individual had authority to consent?) 3. Did the police stay reasonably within the bounds for which consent was given? (Did they stay w/in the scope of the consent?) Schneckloth v. Bustamonte Gives a warning ticket but no arrest. Therefore no authority to search automobile. Custodial arrest triggers automatic Chimel search (under Belton) officers search the compartment. Non-Custodial does not trigger this. says he didnt know he could refuse a cop and if he didnt know then the consent is not voluntary. Strict standard of waiver must have voluntary relinquishment of a known right. Because consent searches are more on neutral ground, and individual hasnt been taken into custody yet, no Miranda warnings necessary Custody = police dominated environment. If the says yes to the search, his rights are waived The mere refusal of consent cannot provide PC or RS to the police Again, however, there is a difference b/w refusal of consent and flight Bumper v NC Officers arrive and say they have a warrant; s grandmother allows them to search Turns out no warrant. The state argues consent. Court says it is not consent, it is aquiessence to a claim of authority. Who has the authority to give consent? IL v. Rodriguez Girlfriend has no authority to give consent to search ex-boyfriends apartment; consent must be given by someone with authority.

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Who can consent to a search of your home? People you live with. If you have given a key to your visiting brother but not search your bedroom. Live-in boyfriend/girlfriend. Dont have to have an ownership interest to be able to consent Children may have authority to let police in house but not search the bedroom; this will be apparent to an officer that the kid doesnt have authority to say they can search the bedroom. Hotel room the management can go in the room while you are gone; but they cannot give consent to the police to search your room (after checkout, the management can let them in) Landlord cannot consent to search on your behalf YOU have a reasonable expectation of privacy during the period of your rental. Can only enter for limited purposes does not equal right to enter for ANY purpose. It is the officers reasonable belief of the situation. Jimeno Reasonable to assume the cop will open containers in the car; however, if it would not be reasonable if it is in a locked container It is a question of reasonableness.

Wiretapping & Bugging

Secret Agents: 4Am issues raised when using these techniques based on consent Deception: if deception destroys voluntariness, it may destroy consent; deception by officer does not destroy validity of consent Lewis undercover officer goes into buy drugs; if you invite someone in you have consented and dont have a reasonable expectation of privacy On Lee someone wired w/ officers listening; same as unwired agent there is consent Hoffa case government can use secret agents and offer inducements in the investigatory phase but not the adjudicatory phase Electronic Surveillance Title III Ominous Crime Bill (1968) 2511(c) if undercover agent agrees to wear a wire, the statute doesnt apply and 4Am doesnt kick in b/c of consent

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2511(d) statute applies to private individuals; you can record your own conversations and it doesnt violate this statute 2511(f) statute doesnt affect foreign intelligence FISA sets up independent and secret court and issues its own warrants 2515 ER is much broader by statute than it is under 4Am States can have their own wire tapping laws, but they must comply w/ the federal rules 2516 people who can seek electronic surveillance are limited; it is much more restricted than normal warrants There is a list of things for which you can get an electronic surveillance warrant

Confessions by - Admissibility
4 Grounds of Attack on Admissibility of Confession: 1. Due process of law 2. 5Am right against self-incrimination Miranda 3. 6Am Massiah 4. TX-only ground 38.22 Due Process of Law Voluntariness line of attack due process argument may be made to any statement at any time Due process has the best ER coerced confession cant be used in any proceeding nor can any evidence derived from it be used Major Drawback: establishing a violation

Connelly any coercion was not b/c of actions of law enforcement officials; there must be some sort of state action Torture if there is violence or threat of violence there is an involuntary confession Courts have recognized subtle forms of coercion: Prolonged interrogation w/o providing basic amenities Promises from officers Miller v. Fenton Must look at exactly what was said/done in a particular case, and must look at the particular individual involved cases are very individualized and looked at on case-by-case basis Officer providing false information to does not go too far There is a case that says when police invented a scientific test it did not go too far Page 20

5Am Right Miranda Miranda v. AZ FACTS the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained of appointed. The may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.

Under 5Am argument, we do not look at each case individually to determine whether the in those circumstances knew of his rights Unless you give the warnings, there is an irrebuttable presumption of coercion must also give all the warnings
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.

Applies to all statements

No distinction can be drawn b/w statements which are direct confessions and statements which amount to admissions of part or all of an offense.

General on-scene questioning is ok Spontaneous statements continue to be admissible

Volunteered statements of any kind are not barred by the 5Am and their admissibility is not affected by our holding today.

Must have custody and interrogation To comply w/ Miranda, the must understand and have the capacity (cant have language barrier, intoxicated, incompetent, etc.) o State has the burden to show that warnings were understood and voluntarily waived Waiver o Must have express waiver silence alone does not constitute waiver
there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.

Henceforth any time there is custodial interrogation by law enforcement officials, familiar warnings from the opinion must be given to all suspects and court wont pause to determine whether warnings were necessary in a particular case; failure to give warnings prior to custodial interrogation creates a conclusive presumption of coercion

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Reverse Line-Up police put in lineup and have someone falsely ID as perpetrator of crime; suspect so concerned re false accusation that he makes admission of crime officers actually suspected committed we dont know if this is outlawed by Miranda Threshold Requirements of Miranda: Custody & Interrogation 1. Custody Would a reasonable person feel he was deprived of his freedom in a significant way? Beckwith v. US Although B was the focus of the conversation, he was in his own home and Miranda applies when the suspect is in a police-controlled area You may be in your home Orozco in the middle of the night police were in his bedroom Must look at all circumstances and determine whether a RPPerson under the circumstances would think he had been deprived of his liberties in a significant way CA v. Beheler officers took B to station and court said that B was just getting a ride from the officer so no custody MN v. Murphy Probation officer Yarborough v. Alvarado Minor; his parents took him to the police station Do not rely on this case re custody Berkemer v. McCarty - is stopped for traffic violation and asked a question that calls for an incriminating response (i.e. Have you been drinking?); dont have to give Miranda warnings b/c Terry encounter is temporary 2. Interrogation RI v. Innis after I was Mirandized, he invoked his right to an atty; under Miranda all interrogation must cease TEST: Interrogation refers to direct words/actions by police (other than those normally attendant to arrest/custody) that police should know are reasonably likely to elicit an incriminating response normally attendant to arrest and custody What is your name words or actions might not be verbal; objective test

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Illinois v. Perkins Perkins is in jail on other charges than the subject of interrogation; interrogation is by inmates working for the state P doesnt have a 5Am right b/c it is not compelled he cant be in a police dominated environment if he doesnt know that he is involved w/ police he is not in a coercive environment Penn. v. Muniz Routine Booking Exception: officer can ask questions and if blurts out incriminating response, that is volunteered statement Dont have to give Miranda warnings before a field sobriety test it is voluntary and is not of testimonial nature Post-Miranda cases generally have undercut Miranda Important areas in which Miranda has changed 1. Effect of violation of Miranda what kind of ER if Miranda violated? 2. Miranda treated as less important than others 3. PUBLIC SAFETY EXCEPTION 4. Waiver cases Harris and Hass if officers get a statement in violation of Miranda, it may still be used for impeachment Duckworth it is ok if the officer does not give the exact wording of the Miranda opinion so long as the warning he gives covers all the bases Fare v. Michael C. if the warnings are given to suspect and suspect invokes the right, you must stop interrogating immediately suspect must use a degree of clarity to invoke his rights Colorado v. Spring one Miranda warning is ok in a single interrogation no matter how many subjects are covered ***Michigan v. Tucker Police didnt give Miranda warnings b/c Miranda had yet to be decided Prosecution didnt use the statement itself; rather used a name from the statement and they introduced that persons testimony Fruit of the poisonous tree does not apply to Miranda violations b/c the rule is designed to protect 5Am values and not the 5Am itself ***NY v. Quarles Ct says no Miranda violations when the questioning is prompted by concerns for public safety public safety exception to Miranda If questioning is prompted by reasonable concerns for public safety, might be able to say the concern is not just to develop evidence about crime but wanted

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to know that some else is/isnt in danger, and we cant do that w/o more information Waiver Miranda required express waiver Post-Miranda cases waiver can be implied as long as there is no impediment to comprehension and it appears the statement is in no way coerced by officers North Carolina v. Butler someone who will tell you orally but wont put it in writing; Miranda doesnt require statements to be written If you encounter this type of situation follow up with warnings to make sure that suspect fully understands Miranda warnings and that what he says even if not written may be used against him Michigan v. Mosley If the suspect invokes his right to an atty, interrogation must cease immediately, but for how long? M said I dont want to talk to you but did not ask for an atty Two hours later officers went back, gave new set of warnings and asked about a different crime Court said that: o Significant time had passed o Different subject At a minimum, need to have a new set of Miranda warnings w/ new interrogation and have to have some appreciable passage of time Edwards v. AZ E asserted his right to counsel Officers ceased interrogation until next morning when they approach him again and ask if he wants to make a statement They had the minimum passage of time, new Miranda warnings, officers ceased interrogation However the important difference was invocation of different right AZ v. Roberson R says he wants to speak to atty; passage of time; then officers try to question about a different offense Miranda said you have right to counsel prior to interrogation if you have invoked that right and no counsel has been provided and there is another attempt to interrogate, that undermines Miranda

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Makes a difference which right you invoke (1) Silence vs. (2) Right to counsel If you invoke right to remain silent: Officials can start interrogation again if there is passage of time and a new set of Miranda warnings If you invoke right to counsel: Officials may not initiate any interrogation after the invocation of the right unless knocks down that barrier by initiating the discussion Minick v. Mississippi M taken into custody and interviewed by FBI afterwards M is appointed atty and talks to him MS law officer comes by to talk to M re unrelated charges; gives M Miranda warnings and M makes incriminating statement If you invoke the right to counsel, police may not initiate any further interrogation o BUT rule can be set aside if shows willingness to talk about criminal investigation US v. Green decision from lower ct that is good law; even if you have officers that might not know anything about the other interrogation, it is a violation to even approach suspect and ask questions What is initiating further communication w/ the police? Oregon v. Bradshaw B says What is going to happen to me now? Officer says you dont have to talk, let me remind you of your rights, you may want to take lie detector test Court said it amounted to initiation on Bs part Davis v. US D says maybe I should talk to a lawyer and officers clarify what he means First part comes in as voluntary statement; after he says maybe I should talk to a lawyer the stuff doesnt come in Edwards rule only invoked if there is a clear statement of desire to have atty prior to any interrogation but what D said does not constitute invocation 6Am Right Massiah (Massiah & Escobedo actually occurred before Miranda) Massiah FACTS: M doesnt know he is talking to police b/c he is talking to a friend who is wired

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If police can hear through wire, it does not change the 4Am calculus b/c of assumption of the risk during the investigatory phase However, balance shifts when you hit the adjudicatory phase o Do we have a formal charging instrument? Indictment? Information? When we hit the adjudicatory phase, officers are running behind the back of counsel; tactics that are permissible in the investigatory phase are not permissible in the adjudicatory phase

Escobedo FACTS: E asked for atty; and Es atty was trying to get to his client and officers prevented him from getting in If asks for counsel or if s atty is trying to see and the police deny the request, violation of 6Am right to counsel Criminal justice system that relies on this kind of admission from accused is not fair and state should have the burden of developing the case against w/o his admission If asks for a lawyer, officers cant continue interrogation w/o providing counsel Brewer v. Williams Christian Burial Speech W had abducted a girl; turned himself in per his atty and he was arraigned now in adjudicatory phase Christian Burial Speech; Is Christian Burial Speech interrogation? o If yes dont have to go further o If no it is a voluntary statement This statement was clearly aimed at Williams (not at another officer as in Ennis) Police cannot deliberately elicit evidence from suspect once the suspect is in the adjudicatory phase absent a valid waiver. There can be no valid waiver if police have initiated interrogation after invocation of right to counsel Majority says the deliberate violation of prior invocation of right made by suspect and made w/ counsel that there would be no interrogation Patterson v. Illinois You waive 6Am rights the same way you waive 5Am rights Miranda does not apply unless knows he is talking to authorities; that is not the case w/ Massiah -- is protected even w/o that knowledge Michigan v. Jackson J appears before judge and one of the first thing judge does is ask J if he has an attorney or would like one Edwards Rule applies by analogy to 6Am context he has invoked his right to counsel and later questioning by officers violated 6Am right to counsel b/c no valid waiver after right was invoked

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McNeil Once you appear in court w/ an atty, officers cant interrogate re an offense in the adjudicatory phase 6Am violation is generally somewhat limited b/c the Roberson rule doesnt apply police can ask about a different offense If McNeil had been given Miranda warnings and he had invoked his right to counsel, then Edwards/Roberson rule would continue to apply but that comes from 5Am

US v. Henry H is in jail and the state puts a jail plant in the cell; state gives plant specific instructions not to ask questions but just to keep his ears open Have to determine if the statements were deliberately elicited to decide if the statements violate the 6Am o Kuhlman v. Wilson Had very similar facts Court said that if you dont do anything to pull the information from the , it is simply a spontaneous statement, so no 6Am violation This court reaches different conclusion The plant was being paid on a contingent fee basis Hs interrogator is not a passive listening post but rather deliberately elicited the evidence Deliberately elicited is more easily reached than interrogation Maine v. Moulton M is in conversation w/ co-; state has made a deal w/ the co-, who is wired for sound when meeting w/ M There is a series of comments re the offense for which M has been indicted (and therefore in the adjudicatory phase) During the meeting, M suggests that some state witnesses should be knocked off those statements are investigatory b/c not related to the adjudicatory-phase offense Miranda protection doesnt apply b/c no custody; but Massiah does apply Tex. v. Cobb We determine whether something is the same or different offense in the same way we determine double jeaopardy we look to the elements of the offense and not the conduct of the to determine whether the same offense is involved Some key differences b/w 5Am & 6Am 5Am/Miranda 6Am/Massiah Must be in custody? Custody requirement No custody requirement Must know he is dealing YES NO w/ officers/authorities to (it applies when using Page 27

have the protection? Can the s atty invoke the right to counsel? Is there a public safety exception? Does the fruit of the poisonous tree rule apply? NO YES NO can use derivative evidence

undercover agents, moles, etc.) MAYBE NO YES derivative evidence is not admissible unless prosecution proves it is not FPT

TX-Only Ground 38.22 Essentially a Miranda rule, with two important differences: 1. There is a 5th warning required that officer must advise the suspect that he has a right to terminate the interview at any time 2. Requirement that to be admissible the statement must be in writing or if oral must be recorded

Fruit of the Poisonous Tree Doctrine

GEN RULE: FPT Doctrine is the idea that derivative evidence derived in an unconstitutional way is not admissible. Miranda Violations Miranda is the exception to the usual FPT doctrine state may introduce derivative evidence gained from interrogation that violates Miranda There are three ways the state can un-poison the fruit: 1. State can show an independent source the state shows that it got the information from another source (rather than ) 2. Inevitable discovery the state shows that the information would have been discovered anyway 3. Attenuated connection What if the derivative evidence is another confession? Oregon v. Elstad FACTS: officers have PC to believe E is involved in a burglary; went to Es home and speak to E (w/ Es permission); E makes admission of guilt at officers prompting; a few hours later E gets Miranda warnings for the first time and makes another and fuller confession Lwr Ct: says FPT controls US SC disagrees That first statement may be admissible Page 28

GENERALLY:

FPT doesnt apply to Miranda; however, if the derivative evidence is a second confession following a confession that failed to comply w/ Miranda, then the court may consider it a continuous interrogation w/ midstream Miranda warnings that are insufficient

TX/38.22 38.22(3) Derivative Evidence Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed. To use the derivative evidence, state must prove: 1. Assertions of fact by statement of 2. Assertions must be found to be true 3. Statements must conduce to establish guilt of the If you dont have all three then the provision doesnt apply

Impeachment
Evidence obtained in violation of 5Am or 6Am may be used to impeach even though it is excluded from the prosecutions CIC NJ v. Portash Involuntary confession under due process cannot be used for any purpose, including impeachment Violation of immunity agreement cannot be used for any purpose, including CIC and impeachment Can you impeach with SILENCE??? Griffin v. CA prosecutor in criminal trial may not point out to jury that did not testify at trial b/c it puts a price on the s 5Am right not to testify Jenkins v. Anderson Fletcher v. Weir In both cases: victim killed and for a couple weeks did not turn himself in, then at the trial claim it was self-; prosecution tries to use that against the USSC There is nothing unconstitutional about this; states may make their own evidence rules, but under constitutional law prosecution may ask about this Doyle v. Ohio he is given Miranda warnings; he invokes right to silence, and prosecution cannot use that against him b/c as a matter of due process it is fundamentally unfair

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TX: Sanchez v. State CCA ruled that when is silent after arrest it is implied that there is an invocation of right against self incrimination under the TX constitution limited to postarrest silence Carter v. KY you are entitled to no adverse interrogation from silence jury instruction Lakeside v. Oregon you are not entitled not to have no inference from silence instruction if you would prefer not to have that instruction, too bad

Identification Procedures
Wade, Gilbert & Stovall all three cases were decided on the same day in 1967 Two rules created: 1. Stovall Rule 2. Wade Rule: cannot have an adjudicatory phase ID procedure (that is cant have a live person ID procedure after the beginning of adjudicatory process) unless there is an atty present absent a valid waiver of the right to have counsel present The court protects against the evil of unnecessary procedures that prompt misidentification US v. Wade FACTS: bank robber, W put into lineup with several other people who more or less look like him; some of the witnesses saw W in the hall w/ police before the lineup 5Am argument o They have W say the words witnesses say robber said o No violation of 5Am rights b/c non-testimonial in nature o Had they only made him do it it might be different; but all the others in the lineup had to do the same Wade Rule requires that there be an atty at some ID procedures; designed to help prevent evil of mistaken ID caused y overly suggestive procedures It is applied like Miranda in the sense that we dont look at the particular circumstances/not case-by-case basis (like we do use in due process cases) if there is no atty present, it is a per se violation and the out of court ID cannot be admitted at trial Factors to consider when determining whether in-court ID should be allowed: o Prior opportunity to observe the alleged criminal act o Existence of any discrepancy b/w any pre-lineup description and the s actual description o Any ID prior to lineup of another person o ID by picture of the prior to lineup o Failure to ID on a prior occasion o Lapse of time b/w alleged act and lineup ID The purpose of these factors is to determine the source of the witness memory

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Attys Role Atty does not have the power to prevent his client from participating in a lineup What do you do at a Wade lineup? Two perspectives: o Active presence make objections, etc. o Passive presence (generally adhered to) You can make suggestions to police if you see something that needs to be fixed, tell officers to fix it You do not waive if you dont object Wade Rule undercut by: 1. Kirby and Ash cases Kirby v. Illinois This is a show-up rather than a lineup meaning it is a one-on-one lineup procedure It is rarely favored; but excused when it is prompt if someone is apprehended near to the scene of the crime, the theory of the immediate ID is that the witness memory is fresh and the freshness outweighs the suggestiveness of the show-up K was sitting with an officer at the station and the witness immediately says it was him there was no atty present The right to counsel arises in the adjudicatory phase so pre-adjudicatory phase IDs are not subject to Wade US v. Ash ID is years after the crime occurred and long after the was indicted BUT it was not a corporeal lineup it is done by photograph The photographic lineup was done very close to trial There was no Wade violation if doesnt have a right to be present, then there is no constitutional right to have atty present 2. Fruit of the Poisonous Tree Due Process argument can apply ti any ID procedure taking place at any time Stovall v. Denno The victim was shown the suspect in handcuffs at the hospital This wasnt too suggestive b/c if there was going to be an ID, it must be immediate b/c the witness was going to die So to violate due process, must have: 1. Suggestiveness 2. Suggestiveness that is unnecessary Manson v. Brathwaite

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Undercover officers make photographic ID two days after buying from suspect; ID was done with one photo Ct says there are three requirements to constitute due process violation: 1. Suggestiveness 2. Suggestiveness that is unnecessary 3. Must give rise to a substantial probability of mistaken identification There are factors to consider in making that decision: 1. The opportunity to view 2. The degree of attention of witness 3. The accuracy of the description 4. The witness level of certainty 5. The time between the crime and the confrontation If there is not substantial probability of mistaken identification, then the officer may testify in court and the out of court ID will be admissible

Due Process Violation 3 Requirements: 1. Suggestiveness 2. Unnecessary 3. Must give rise to a substantial probability of mistaken identification Factors to consider in deciding whether there is due process violation: 1. The witness opportunity to view 2. The degree of attention of the witness 3. The accuracy of the description 4. The witness level of certainty 5. The time b/w the crime and the confrontation

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