4th Amendment: Search and Seizure
Whether search and seizure falls under 4th AM must affirmatively answer all:
i. Was the invasion upon an area/item protected by 4th AM
ii. Did Government agent
1. Physically intrude protected area/item to obtain information or
2. Violate individual's reasonable expectation to privacy in protected area/item
iii.Did individual have authority/standing to challenge government agent conduct?
The 4th AM Protects:
1. Persons (body)
2. Houses (hotel rooms) + Curtilage (area of domestic use immediately surrounding house)
3. Papers
4. Effects (wearing/carrying/cars/purses)
The 4th AM Does NOT Protect:
Generally: anything public in nature, routinely exposed to 3P
1. Account records (banks)
2. Public airspace
3. Garbage (curbside)
4. Odors (emanating from car/luggage)
5. Open fields (in or across)
Government Agent: Physical Intrusion or Privacy Expectation Violation
i. Remember Jones Case: GPS device tracking car's movement was violation b/c car is protected and was done to obtain information on movement of car
ii. Reasonable Expectation Privacy Test
1. Individual must show actual/subjective expectation to privacy of area
2. Expectation must be recognized as reasonable by society (most important requirement)
iii. Device not in public use
1. Searches are presumptively unreasonable when a device not in public use is used to explore details of home that could not have been known without physical intrusion (thermal sensor)
Standing/Authority
Must have standing to challenge lawfulness of government conduct
1. Individual's own privacy rights must be implicated
Standing Includes:
1. Owners and renters of premises
2. Guests of premises in areas overnight guests are expected to be (common area)
3. Ownership of seized property SO LONG AS owner has reasonable expectation to privacy of area it was seized
Standing Does NOT Include:
1. Brief commercial contact (one time visit, friends using apartment)
2. Ownership of seized property that has no reasonable expectation to privacy of area it was seized
3. Passenger of car (no reasonable expectation to privacy)
Was the Government Agent's Action Constitutional? (With Search Warrant)
Warrant Must:
1. Issued by neutral and detached magistrate
2. Supported by probable cause and particularity or if defective police must rely in good faith
3. Properly executed by police
Neutral and Detached Magistrate
Conduct must not demonstrate bias in favor of prosecution
Probable Cause and Particularity Gates Test (Modern)
Probable cause requires proof of fair probability contraband or evidence of crime will be found in area searched.
Hearsay can be used to furnish PC
Informant Testimony:
1. Informant tips may be used to furnish PC even if anonymous
2. Sufficiency of the tip turns on corroboration by the police of enough of the tipster's information to allow magistrate to make "common sense practical determination" that probable cause exists based on the totality of the circumstances.
Probable Cause Aguilar Spinelli Test (Stricter/Former)
Probable cause based on information from informant is ok so long as prosecutor shows two elements:
1. Informant's basis of knowledge
2. Informant's reliability or veracity
Particularity
Requires search warrant to specify two things:
1. Place to be searched
2. Item to be seized
When there is an issue with a warrant:
Good Faith Doctrine saves defective search warrants UNLESS one of the categorical exceptions to the Good Faith Doctrine exists
1. If affidavit supporting the warrant is so egregiously lacking in probable cause
a. Ex) DA went to Court for search warrant and told magistrate evidence for PC the affidavit stated police received info from confidential informant who has provided them reliable info in the past. AKA DA telling magistrate informant is ok.
b. Independent officer must be able to determine probable cause
2. Facially deficient in particularity officers could not presume it to be valid
3. If affidavit contains knowing or reckless falsehoods necessary to the probable cause finding
a. Only negligently included not enough, at the very least reckless
4. If magistrate is biased in favor of the prosecution
Four Exceptions to Good Faith:
1. If affidavit supporting the warrant is so egregiously lacking in probable cause
a. Ex) DA went to Court for search warrant and told magistrate evidence for PC the affidavit stated police received info from confidential informant who has provided them reliable info in the past. AKA DA telling magistrate informant is ok.
b. Independent officer must be able to determine probable cause
2. Facially deficient in particularity officers could not presume it to be valid
3. If affidavit contains knowing or reckless falsehoods necessary to the probable cause finding
a. Only negligently included not enough, at the very least reckless
4. If magistrate is biased in favor of the prosecution
Properly Executed by the Police
a. Whether the officers who executed warrant complied with its terms and limitations
b. Whether the officers complied with the knock and announce rule
c. In an exam read the sample warrant carefully to make sure the terms and limitations are followed in the fact pattern
i. Ex: Warrant allows officers to search living room of evidence for stolen iPads
1. Place outside scope of warrant: any areas outside the living room
ii. Items outside scope of warrant: any items other than iPad or areas large enough to house iPad
d. Knock and Announce (less important)
Not as important because of exceptions: Cops don't have to knock and announce if reasonable belief exists that it will be futile, dangerous or would inhibit the investigation
Warrant-less Search and Seizures
Eight categorical exceptions: ESCAPIST
a. Exigent circumstances
b. Search incident to arrest
c. Consent
d. Automobile
e. Plain view
f. Inventory
g. Special Needs
h. Terry Stop and Frisk
Exigent Circumstances
a. Evanescent Evidence: evidence that will dissipate or disappear in the time it takes to get a warrant
i. No warrant for Breathalyzer test complies with 4th AM (not necessarily state law etc.)
b. Hot pursuit of fleeing felon: enter suspect home or home of 3P to look for them
c. Emergency Aid: enter a residence when they reasonably believe a person inside needs emergency aid to address or prevent injury
Search Incident to Arrest
Justifications
i.Officer safety
ii.Need to preserve evidence
Timing
i. Must be contemporaneous in time and place with arrest
Geographic Scope
i. Wingspan: including body, clothing, and any containers within the arrestees immediate control without regard to the offense for which the arrest was made
Secured and Unsecured Arrestees
i. Secured: once secured (handcuffed placed in squad car) then they can search the vehicle if they believe it may contain evidence relating to the crime for which the arrest was made.
1. Driving w/ suspended license cannot search vehicle when secured. So leave her unsecured. Drunk driving relates so yes they can search.
ii. Unsecured: if unsecured they may search even though unrelated to the crime for which arrest is being made.
Consent
Requirements: To be valid the consent must be done freely and voluntarily. Officers are not required to tell someone they have the right to say no.
Scope: the individual who grants the consent may determine the extent to which the cop can search.
Apparent Authority: consent given by a person lacking authority is still valid if the officer reasonably believed consenting party had actual authority
i. Illinois v. Rodriguez: woman comes to police station to lodge domestic violence claim. Woman accompanies officer to the apartment (she shares w/ the man) and she uses the key to allow the cop to enter.
ii. Any resident can authorize common area search.
iii. If disagreement arises over search the objecting party can block the officer authority to search common areas if present and objects.
Automobile
***DO not reflexively apply this exception just because you see the automobile. It will depend on the facts of the particular problem. Beware the sequence of actions in the fact patterns.
Justifiability:
i. Ready mobility and of vehicles
ii. Individual's lesser expectations
Requirements:
i. Probable cause that evidence of crime will be found in vehicle
With PC they can search the entire vehicle and open any package, luggage or other container that may reasonably contain the item for which there is probable cause to search.
1. Backpack in trunk when looking for 47" flat screen not ok to search
2. Traffic stops can result in search of all or part of the vehicle under the auto exception provided the officer has probable cause before he initiates the search (not necessarily when he pulls the car over)
Plain View
Need all three requirements
Requirements:
i. Lawful access to the place from which the item can be plainly seen
ii. Lawful access to the item itself
iii. The criminality of the item must be immediately apparent
Ex: Hot pursuit looking for felon, ok to enter house without warrant, in closet finds backpack with baggy labeled marijuana. Lawful access to place, criminality apparent of item labeled marijuana but did not have lawful access inside backpack when looking for the person.
Inventory
Inventory searches occur:
i. Arrestees being booked into jail by correctional officials
ii. Vehicles impounded
Requirements:
i. Regulations governing them must be reasonable in scope
ii. The search must comply with those regulations
iii. The search must be conducted in good faith
Special Needs
Beyond law enforcement interest
Random drug testing in approved contexts:
i. Railroad employees following impact accident
ii. Customs agents responsible for drug interdictionprohibition
iii. Public school children who participate in any extracurricular activity
Sobriety Check Points
i. Special need to ensure drunk drivers are not in highways threatening the public
ii. Indianapolis Drug Interdiction Check Point: just like sobriety except alcohol it's drugs. SCOTUS said nothing like sobriety because it was not designed to keep high driver's off the road but to search vehicles and "policing"
iii. If the primary purpose of a policy is to gather criminal evidence not to protect from an imminent threat to safety this is a problem with special needs.
Border Searches
No one has any rights to person and effects at the border
Public School Search
Warrantless searches of persons and effects of school children are permissible to investigate violation of school rules (such as smoking on school grounds) provided the search is reasonable at its inception and is not excessively intrusive in light of age, sex, nature of infraction
Strip Search for Advil Case: SCOTUS said search was excessively intrusive in light of age and sex (8th grade female) and in light of infraction (even if she was the Advil was not going to engender great harm to the students)
Terry Stop and Frisk
Terry v. Ohio: pacing men in front of dept. store and cops believe they are casing the joint for burglary. Lacking PC the officers want to stop them briefly to investigate their suspicions. OK per SCOTUS now known as the Terry Doctrine.
Terry Stop
Brief detention or seizure for the purpose of investigating suspicious conduct
i. Can take place anywhere (bus, airport, street, car)
Seizure: occurs if reasonable person wouldn't feel free to leave or to decline an officer's request to answer question
1. Interactions between the public and officers are presumed voluntary (non-seizures). To be considered a seizure there must be factors present that turn it into involuntary non-consensual encounter (don't automatically make it a seizure but SCOTUS has considered these factors for determination).
Factors:
i. If the officer brandishes a weapon
ii. The officers tone and demeanor
iii. Whether individual was told they had the right to refuse consent.
Officer is chasing you =Seized only if you submit to officer's authority by stopping or officer physical restrains him (California v. Hodari D.)
Traffic Stops
a. Both driver and passengers can be ordered out of the car.
b. Both the driver and passenger are considered seized and either can challenge the stop.
c. Dog sniffs at traffic stops are permissible provided the sniff does not prolong the stop unreasonably. *remember odors emanating from the car are not protected.
Terry Stop Evidentiary Standard:
1. Requires reasonable suspicion (less than probable cause)
Reasonable suspicion: requires facts that inform an officer's belief that criminal activity is present (4th AM only cares about objective reasonableness of the stop not officer's subjective intent)
2. Informant tips ok to furnish reasonable suspicion provided they have sufficient predictive information to render them reliable
Terry Frisk (safety frisk)
Pat down of body and outer clothing for weapons justified by officer's belief the suspect is armed and dangerous.
What can be seized in Terry Frisk:
1. Anything the officer believes to be a weapon
2. Contraband provided the officer does not need to manipulate the object to determine what it is
a. Finds bag of cocaine=
During terry frisk=No way any officer can ID as cocaine without tactile manipulation to differentiate it from what is innocuous
Search incident to arrest= ok because bright line search within wingspan
Terry Car Frisk:
Officers may search places where weapon may be placed or hidden (passenger cabin)
Protective sweep: when making in home arrest, officers may sweep residence to look for criminal confederates who may threaten their safety. May sweep area that immediately adjoins place of arrest if there is reasonable suspicion the house has a person who poses danger to officer safety.
Terry Frisk Evidentiary Standard
1. Facts that suggest a suspect is armed and dangerous
2. Justified only by officer safety
Exclusionary Rule for Unconstitutional Searches/Seizures
Evidence gathered in an unconstitutional search is inadmissible EXCEPT it is admissible when:
1. Impeachment on cross (excluded from case in chief)
2. Evidence subsequently discovered of failure to knock and announce (can sue civil)
3. Erroneous police conduct was not either deliberate, reckless, or grossly negligent
4. Reasonable officer mistake during search warrant execution
5. Fruit of the poisonous tree when Inevitable or Attenuation Discovery Doctrines are met
Fruit of the Poisonous Tree for Unconstitutional Searches and Seizures
Fruit of the poisonous tree is excluded from prosecutor's case in chief but can be allowed under two doctrines:
Inevitable Discovery
Admitted when that evidence would necessarily have been discovered through lawful means
-Nix v. William: Iowa little girl murdered case
Attenuation Discovery
The passage of time and intervening events purge the taint of the original illegality and restore free will
Evidence gathered under search warrant found to be unconstitutional = Direct Evidence
Evidence obtained by exploiting prior unconstitutional conduct= Derivative/Secondary Evidence
-Cop extracts confession based on unlawful arrest, confession would be derivative and fruit of the poisonous tree
Eavesdropping
If you speak to someone who has agreed to wiretap or electronic monitoring you assume the risk that they will not keep you conversation private
The Law of Arresti. An
An arrest occurs when police take someone into custody against their will for one of two things:
1. Prosecution or
2. Interrogation
Compelling someone to come to station house for fingerprinting is considered de facto arrest
Standard of Proof for Arrest
Probable cause
Arrest Warrants
-Don't need to arrest in public place
-Absent an emergency to arrest someone in their home
-In home of 3P need arrest and search warrant
Custodial Arrests under 4th AM
-All offenses of those punishable by a monetary fine only (within officer's plenary authority)
Confessions- 14th AM - Due Process Clause
Involuntariness: the confession is the product of police coercion that overbears the suspects will
Colorado v. Connell: Psycho admits to murder and psychiatrist says he is psychotic at time of confession. Because Connelly was not coerced by the Government to divulge any information, his statement should be allowed in Court due to the lack of violation of the Due Process Clause.
Confessions- 6th AM - Right to Counsel
Express constitutional guarantee
Limited in scope:
1. Attaches when defendant is formally charged (not upon arrest)
2. Once attached, applies at all critical stages of the prosecution, including arraignment, probable cause hearings, police interrogation (after formal charging)
3. Offense specific: applies only to the crimes with which a defendant is formally charged
-No protection for uncharged criminal activity
4.If statements are deliberately elicited by the officer they will be excluded in absence of a waiver
Confessions- 5th AM - Miranda Doctrine
Implied rights grounded in the self-incrimination clause of the 5th AM
You have the right to remain silent anything you say can and will be used against you and you have the right to an attorney if you cannot afford one, one will be provided to you
Requirements for Miranda to Apply:
1. Custody Requirement- to determine suspect in custody is two-step process:
-Step 1: Freedom of movement: whether a reasonable person would have felt they were at liberty to terminate the interrogation and leave
-Step 2: Environment of interrogation: inherently coercive and police dominated (need both for custody)
2. Interrogation Requirement: any conduct that the police knew or should have known was likely to elicit and incriminating response
Ex) Case Defendant thought he was talking to fellow inmate and confessed to undercover cop about another murder (not the crime he was jailed for) so environment is not coercive and Miranda does not apply
Public Safety Exception
If interrogation is prompted by immediate concern for public safety, Miranda warnings are not necessary and any statements defendant makes are admissible.
Public Safety Exception (Miranda Rights)
Public Safety Exception
If interrogation is prompted by immediate concern for public safety, Miranda warnings are not necessary and any statements defendant makes are admissible.
A suspect with custodial may:
1. Waive Miranda rights and agree to talk with officers
2. Assert his right to remain silent
3. Assert his right to counsel
Miranda Waiver
May be implied by course of conduct that suspect waives rights by making un-coerced statement to officers
Must be established by prosecution by preponderance of evidence
Requirements for Waiver:
1. Knowing and intelligent
In order to be knowing and intelligent the suspect has to understand the nature of the rights and consequences of abandoning them
2. Voluntary
Free from police coercion
always means the same thing throughout crim pro
Ex) Case where man is arrested and attorney calls into station house and demands to be called if her client will be interrogated. Client waives Miranda rights and incriminates himself. SCOTUS (O'Connor) determined he understood knowingly and intelligently his Miranda rights were being waived voluntarily despite attorney not being present
Assert his right to remain silent
Must unambiguously invoke this right to remain silent
Once they do the police must scrupulously honor the indication
At the very least the police cannot badger the suspect into talking and must wait significant period of time before they re-initiate questioning
Assert his right to counsel
Even the conservative courts of the last few decades safeguard the indication of right to counsel
Not offense specific... prohibited to all topics outside presence of suspect's attorney
In order to invoke:
i. Request must be sufficiently clear that a reasonable officer would understand it to be a request for counsel
ii. Once made, all interrogation must cease unless initiated by the suspect until 14 days after suspect is released from custody UNLESS suspect initiates or is questioned in presence of the attorney
Exclusionary Rule for Miranda
Incriminating statements obtained in violation of Miranda are inadmissible in prosecution's case in chief but admissible to impeach testimony on cross
A failure to mirandize does not require suppression of the physical fruits of incriminating statements provided they are voluntary
-Suspect confesses to murder, tells cop where murder weapon is, cop retrieves weapon, later determined entire interrogation in violation of Miranda, the defendant can secure statements but not the weapon as a physical fruit of the interrogation
Subsequent statements made after obtaining a Miranda waiver are admissible provided the initial non-Mirandize statement as not obtained through the use of inherently coercive police tactics offensive to due process
-Police get second bite at the apple
Identification Types
Line up
-Witness asked to identify perpetrator from behind one way glass (as few as three, as many as 6)
Show Up
-Witness is shown one person and asked if that person is the perpetrator
Photo array
-Witness is shown series of photograph (few as 6, as many as book) to identify the perpetrator
Identification Challenges
Denial of right to counsel
1. The 5th AM Miranda doctrine does not apply to pre-trial identification procedures
2. The 6th AM right to counsel applies to line up, show ups but NOT photo arrays
Due Process
1. If pre-trial identification is so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification
2. In making this determination courts must weigh reliability of ID against its corrupting effect
Remedy for Unconstitutional Identification
When constitutional violation of pretrial identification occurs the remedy is exclusion of witnesses in court ID otherwise a miscarriage of justice may occur UNLESS proved witness's ID is based on observations other than the unconstitutional line up the open court ID will be permissible
Three factors to make this permissible (realiability!):
i. Witnesses opportunity to view Defendant at crime scene
ii. Specificity of description given to the police
iii. Certainty of the witnesses identification
Arraignment
3 Occurrences during Arraignment
i. Magistrate advises suspect of their rights
ii. Sets bail
iii. Appoints counsel if not already represented
Pre-Trial Detention
Cannot detain someone prior to trial without probable cause
Defendants have right to hearing to determine probable cause
Unless one of two situations:
-Grand jury has issued an indictment
-Magistrate has issued an arrest warrant
Trial Rights- Brady Rule
A prosecutor must disclose all material exculpatory evidence (Brady Rule) prior to trial
All defendants have a right to an unbiased judge
Unbiased Judge
1. No financials stake in the case
2. No actual malice towards the defendant
Trial Rights - Jury
All criminal defendants have right to fair and impartial jury
The right to a jury trial kicks in when maximum authorized sentence exceeds six months
The fewest number of jurors allowed constitutionally is 6
Jury verdicts constitutionally must be unanimous if 6 jurors are used
1.Criminal trial for felonies typically states use 12 person juries and require unanimous decisions
Cross Sectional Requirement
1.The pool of jurors from which jury is drawn represents a cross section of the community, not the actual jury itself
Peremptory Challenges
1. May exclude jurors without stating reason
2. Cannot be used by either side to exclude jurors on basis of race or gender
Right to Effectiveness of Counsel
Evaluated under two prong test (Strickland Test):
1. Deficiency Requirement
-Counsel's performance fell below an objective standard of reasonableness (errors were so serious it was as if they were not functioning as counsel)
2. Prejudice Requirement
-But for the deficiency, the outcome of the trial would have been different
Ex: attorney takes cat naps during trial ok because was not prejudicial
Ex: attorney slept through entire 15 minute testimony and could not perform cross and court said no prejudice because that witness didn't have much to say anyways
Need some colorable argument the person is not guilty or else appeal will be denied
Pleas and Plea Bargaining
A guilty plea is valid when:
1. Voluntary
2. Intelligent
To meet showing judge must engage in plea taking colloquy
1. Judge must address on record in open court:
-Nature of charges + elements of defense
-Consequences of the plea
Double Jeapordy
**
DOES NOT APPLY TO CIVIL PROCEEDINGS
**
Criminal defendants shall not be subject for the same offense to be put twice in jeopardy of life and limb by the same sovereign
Attaches to criminal proceeding when:
1. Jury Trial: when jury is sworn jeopardy attaches
2. Bench trial: when first witness is sworn jeopardy attaches
3. Guilty Plea: when court accepts the plea unconditionally jeopardy attaches
Same Offense (Double Jeapordy)
Blockburger Test
-Two offenses aren't the same offense for double jeopardy if each contains an element the other does not
Ex) First charge requires charges ABC and second requires ABCD that would mean the first offense is lesser included offense of the second. Once greater or lesser charged you cannot go back and charge the other one again later on
Same Sovereign (Double Jeopardy)
1. Can be prosecuted by federal and same thing under state law
2. Different states are considered separate sovereign (state A then state B)
3. States and municipalities within them are same sovereign
Ways around Dbl Jeopardy
1. Hung Jury
2. Mistrial for manifest for necessity (defendant too sick=mistrial)
3. Successful Appeal (legal issue) not insufficiency of quantum of evidence
4. Plea bargain if Defendant breaches plea bargain
Compelled Testimony
Pleading the 5th
1. Anyone can plead the 5th (defendants, witnesses, criminal defendants) and must be taken in proceeding of sworn testimony
2. Testimonial privilege only (doesn't apply to state's use of your body)
Ex: man pulled over for DUI wont consent to breathalyzer and nurse takes blood forcibly. SCOTUS found this is a privilege for testimonial purposes only.
3. Disallows negative prosecutorial comment on:
-Defendant's choice not to testify
-Defendant's invocation of Miranda right
Preventing Pleading the 5th
1. Granting immunity
Use and Derivative Use Immunity
-Prevents government from using testimony or anything derived from it
2. Defendant takes the stand
-By taking the stand you implicitly waive ability to take the 5th
3.Statute of limitations
-Cannot take the 5th unless by answering the question you are exposing yourself to criminal prosecution
-If all it does is make you look bad (the SOL has run on your crime committed) you cannot take the 5th