1) Person exhibits an actual (subjective) expectation of privacy

2) The expectation is one which society is prepared to recognize as reasonable (objective)

1) Canine Inspections

2) Chemical testing of small amount og substance

3) Contraband

1) Abandonment/Dissociation

2) Plane with no cover of windows

• A vehicle is an "effect" under the 4th Amendment and thus the attachment of a GPS device thereon constitutes a search.
• Physical trespass (or intrusion) into a constitutionally protected area constitutes a search within the meaning of the 4th Amendment.

Open Fields Doctrine: Search or No Search?

1) PO trespasses on D's land in middle of night, walked through his first, and climbed over his wire fence to conduct surveillance

2) Barn located 50 yards from fence surrounded residence on 200 acres of property.

3)Unattached garage was 50 yards away from house, within natural boundaries of river and trees, set far back from the road, and the officers had no indication that D was using garage for illegal activity.

1) No search

2) No search

3) Unattached garage was within curtilage

3rd Party Disclosure Doctrine

1) Criminal Informant/anyone else wearing a wire

2) Financial records obtained from financial institutions

3) Pen Registers to track dialed numbers

4) Subscriber info conveyed to computer system operator

5) Trash

6) Water Contamination

7) Visibility in crack of bathroom stall

8) Aerial photographs of manufacturing plant

9) Beeper attached to government owned barrel which transmitted info which led to cabin but did not track movement within cabin

3rd Party Disclosure Doctrine

Is physical manipulation of luggage allowed under Katz?

3rd Party Disclosure Doctrine

Heat emissions from thermal imaging device used to detect areas of heat in home.  Violates 4th?

3rd Party Disclosure Doctrine\

Helicopter/plane taking photos of home?  4th violation?

Is a search conducted by private parties who subsequently turn it over to police implicating the 4th amendment?

Even if product of illegal activity?

How about citizens working as agents of the government?

No, even if product of illegal activity.

Yes, encouragement/offer of prize from government can implicate 4th.

• 4th Amendment not implicated by government reopening a package 30-45 minutes later.
• 4th Amendment would be applicable to a subsequent reopening only if there is a "substantial likelihood that the contents of the container have been changed during gap in surveillance.

GENERAL RULE: Evidence obtained by foreign PO from searches in their country is generally admissible regardless if search complied with 4th.

Exceptions:

1) If the circumstances of the foreign search and seizure are so extreme as to "shock the conscience"

2) US participation in investigation is "so substantial" as to make it a joint venture

Rule on Evidence Obtained by Foreign Officials

Is a search of non-resident alien at behest of US by foreign PO implicate 4th amendment?

Do students have legitimate expectation of privacy in their possessions at public school?

Do government employees have a reasonable expectation of privacy in their place of work

Yes and Yes, must be judged on reasonableness grounds

1) Probable Cause - demonstration of a factually-based interest in people, places or things before using its power to disturb them

2) Oath or Affirmation - persons must be willing to swear by the truth of their statements and be held accountable for their factual assertions

3) Specificity Requirement - specification of objects to be seized and/or seized

1) Underlying Circumstances Prong - satisfied if 1) Informant makes direct statement of personal knowledge; OR 2) Statement which contains a wealth of detail which creates an inference of personal knowledge

2) Reliability/Credibility Prong - police officers and law abiding citizens are presumed reliable.  Criminals/Ex-Criminals are reliable IF: 1) THey have good track records of reporting good info; 2) They make declarations against their interests

*Both prongs must be satisfied if PC is to be found*

1) One strong prong, one weak, no corroboration

2) Informants info isnt sufficient on its own but the police's independent work provide corroboration.

Sufficient or Insufficient Corroboration

1) Questionable Veracity/Wealth of Detail

2) Lack of detail/History of reliable tips

3) Two mutually corroborative tips

4) Anon tip that D will receive package of drugs from federal express.  PO investigated and found D had regularly been receiving packages

5) Anon tip that tipster smelled pot emantanting from D's home

6) Reliable tip that tipster observed pot in D's home, provided directions to D's home and gave accurate description of what pot looks like.

1) Sufficient

2)Sufficient

3) Sufficient

4) Sufficient

5)Insufficient

6) Insufficient

Car was pulled over for speeding and subsequently consented to a vehicle search which yielded bags of cocaine.  No one claimed ownership.  PO arrested all three.

Was there PC to arrest all three?

Yes,

1) drugs were accessible by all three men

2) people riding in car will often be engaged in a common enterprise

Yes it can be:

1) Rebuttable presumption dog is reliable IF:

a) bona fide org certified the dog

b) no certification but dog has track record

2) D must have opportunity to challenge such evidence

a) contest certification

b) Evidence of the dogs or handlers history in field

c) odd circumstances surrounding alert

1) Fruits and instrumentalities

2) Mere evidence - probable cause must be examined in terms of cause to believe that evidence sought will aid in a particular apprehension or conviction.

Probable Cause as to Location of Evidence

1) Sufficient nexus between robbery and D's home?

2) Selling drugs on streets sufficient nexus to search D's home?

3) Does PC to believe D had child porn in house establish PC to search car?

1) Yes

2) Depends on court

3) No

DESCRIBING THE PLACE TO BE SEARCHED

Warrant authorizing search of a "3rd floor apartment" even though there were 2 apartments?

Upheld by court because constitutionality of PO conduct is judged in light of the info available to them at the time they acted.

utility company indicated there was only apartment.  Officers check door buzzers and they did not indicate how many apartments were on floor.

Reasonableness limitations on Warranted Searches

State had PC that requiring D to get surgery to remove a bullet would uncover evidence

1) If door is already open police are not required to announce their presence before entering

2) Officers may trick inhabitant into opening door

3) Emergency circumstances (inhabintants answer door with guns, etc)

12 seconds with no answer = refusal

3 seconds = no refusal

5 seconds with no answer = refusal given small size of apartment.

Can be issued when applicant gives reasonable ground to expect futility or exigency already exists or will arise instantly upon knocking

If police obtain no knock warrant before searching burden is on D to prove unreasonable

1) Felony

2) Misdemeanor which PO has reasonable cause to believe that person:

i) will not be apprehended unless immediately arrested;

ii) May cause injury to himself/others or damage property unless immediately arrrested

3) A misdemeanor or petty misdemeanor in the officers presence.

All claims of excessive force (deadly or not) are governed by reasonableness standard of 4th.  Relevant factors:

1) Severity of crime

2) whether suspect poses an immediate threat to the safety of public

3) Whether suspect is actively resisting arrest or attempting to evade by flight.

• A person arrested w/o warrant is entitled to a "prompt" post arrest assessment by a magistrate.
• General guideline that post arrest assessment must be given in 48 hours. (Over 48 hours gov has burden to prove delay unreasonable; Under 48 - D has burden)

• Police must get an arrest warrant in order to enter a home of someone they have PC to arrest.
• If negative consequences could occur in the time it takes to get a warrant, officers are excused from obtaining one under exigent circumstances
• An arrest warrant carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.

Arrest at Home or in Public?

1) Common Hallway

2) D voluntarily opens door and actions were not taken pursuant to lawful authority.

3) Tent

4) Properly rented hotel room

1) Public

2) No payton violation

3) Home

4) Home

Search warrant.

Search warrant requires magistrate to have PC to believe that the suspect is located in the home of a third party while an arrest warrant only requires determination of PC to arrest that person.

1) Stop is permissible if there is RS that crime is afoot (Judged from Totality of Circumstances)

2) Search is permissible if it is reasonable to think suspect is armed (sole justification)

• Whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety is in danger

• Officers have an automatic right to order a driver out of a vehicle due to safety concerns (Per Se Rule)
• Mimms applies to passengers in stopped vehicles.

• PO with a search warrant for a home can require occupants of the premises, even if leaving when PO arrive, to remain while a search is conduct.
• Subsequent case upheld handcuffing and questioning of person for up to three hours during search warrant of the home of a suspected gang member
• Summers does not extend to someone who leaves premises.  Summers Rule is limited to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant.

• A person has been "seized" within the meaning of the 4th Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave

1) Threatening presence of several officers

2) Display of a weapon by an officer

3) Physical touching of the person of the citizen

4) Use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Free to Leave?

Officer's took D's ticket and driver's license and started walking away.

Free to Leave Factors

1) Does refusal to talk provide RS to justify a stop?

2) Does an officer identifying himself as an officer convert an encounter into a seizure

1) No

2) Without more it does not.

Seizure or Encounter?

1) PO tells D to get outside his vehicle and sit on patrol car

2) PO blocked D's path with their car, officer stepped out fully uniformed and started confronting D with accusatory questions and another officer ordered him to place his hands on the hood of the car.

3) Ordering driver to turn off car engine

4) Officer persisted in telling D to roll down his window even after motorist refused

5) Officers asking questions while following D slowly

1) Seizure

2) Seizure

3) Seizure

4) Seizure

5) Encounter - no sirens or flashing light used to indicate D should stop in tracks NOR did they ask D to approach their car.

Factory Sweeps

PO went in factory to search for illegals.  Some agents stood at exits while others were disbursed conducting interviews.  Workers were free to walk around.  Agents displayed badges, were armed but did not draw weapons.

• 4th Amendment permits police officers to approach bus passengers at random to ask questions and to request their consent to searches, provided a reasonable person would understand that he is free to refuse.
• Fact that a passenger may not want to get off the bus and risk it leaving without him is a natural choice of taking the bus and does not inform the coercion analysis.

When there is a governmental termination of freedom of movement through means intentionally applied.

Ex. Officers set up roadblock to apprehend fleeing suspect.  Suspect crashes into it and dies.

State of Mind Required for a Stop

1) Shots fired that hit unintended 3rd party

2) Officer shoots 3rd party believed to be suspect

3) Passenger of car that is stopped

1) Not seized

2) Seized

3) Seized

Hodari: pursuit of a suspect fleeing from police is not a seizure. 

Where the officer engages in a non-physical show of authority, it must be such that a reasonable person would not feel free to leave, AND the citizen actually submits,

Yes, where tip is significantly corroborated (Some info was wrong but RS is a lesser standard)

Is an anon tip of someone carrying a gun sufficient to establish reasonable suspicion?

Is anon type of a bomb threat potentially enough to establish RS?

NO.

YES.

Did traffic stop violate 4th Amendment becuase the tip provided to the officer lacked indicia of reliability.

911 call from individual purporting a Silver Ford F-150 run her off the road, ID'd plate.  PO found suspect and tailed him.  Driving was fine but the police pulled the individual over and found marijauna.

Reasonable suspicion criminal activity was afoot?

Unconfirmed reports of D going slightly over the speed limit or not wearing a seatbelt?

Sufficient to stop via RS?

Anon tips of domestic violence even without corroboration?

What is Anon?

1) Face to Face

2) Anon who reveals distinguishing characteristics

3) 911 calls from unblocked number

1) More reliable than anon

2) Not anon

3) Not anon

1) Assessment must be based upon all circumstances

2) Assessment of the whole picture must yield a particularized suspicion of an individual who is engaged in wrongdoing.

Reasonable Suspicion?

D traveling on sparsely used road, PO noticed childrens knee's were raised as if something were lying below their feet.  Car was traveling at same time as shift change.  When PO pulled along side car the children waved mechanically.

Reasonable Suspicion?

1) The Mikey D drug buy in high crime area?

2) Bank robber described as black male, medium build, facial hair, wearing white Nike tennis shoes, suspect fits description walking 2 blocks away from said bank

3) Hispanic men at HS football game, did not mingle w/ crowd

4) Two nervous people in car being tailed by PO

5)

1) RS

2) RS

3) NO RS

4) No RS

Compared with PC?

1) 1 in 40 chance

1) Enough for RS but too small to support PC

2) RS is described as a fair probability

1) Majority of lower courts have said race can inform totality of circumstances

2) Minority have said that it cannot

Not a per se rule, depends on circumstances. 

RS will exist when there is flight in a high crime area.

Terry frisks can only be used for protective purposes.  When officer felt object and knew it was not a weapon he can search no further.

1) feeling 5 credit cards in a sock can justifiably be believed

2) Unzipping suspects jacket in order to facilitate showup ID not justified by Terry

RS to support Frisk?

Anon 911 call stating woman in blue car parked on 1st (high crime) handed a gun to a man seated in car with her.  She was frisked

RS to justify stop?

PO patrol in high crime.  Saw man standing in road, flashed lights on him and he stumbled.  Suspecting he was drunk PO approached.  D appeared nervous, did not answer and began to back away when asked his name.

RS Based on Crime person Suspected?

1) Tax Offense

2) Parking violation

3) Robbery

1) No

2) No

3) Yes, even if D fully cooperative.

Grab Area Extension Examples

1) Search of D's car during stop

2) Search of glove box hen officers have RS of drug activity

3) Frisk of all occupants of car where pot found?

4) Search of "hide area" in car with complicated steps

5) Search of overalls located few feet from man who was suspected to be attempting burglary.

RS to Frisk?

1) Frisk of person who happened to be at bar where police arrived to execute search warrant

2) Frisk of person exiting crackhouse which was about to be searched.

1) NO

2) YES

• AKA Protective Sweep After Arrest
• STANDARD: Quick and limited search of the premises, incident to an arrest and conducted to protect the safety of the PO or others when there is RS that an area is harboring a dangerous individual.
• Cant conduct Buie sweep if no indication 3rd party on premises.

Line between Stop and Arrest

1) Forced movements for reasons of safety/security

2) coercive movements for purposes of showup 1 minute away

3) Questioning about identity/circumstances of stop

4) Computer check on license

Consensual Encounter After Stop has Ended?

Officer does not have to tell D that he is free to leave.  The test for whether the continuing discussion was consensual is based on the totality of the circumstances and not any one factor.

Ex. D was legally stopped for speeding and given a warning.  When the PO returned D's license he asked, "One question before you get gone: Are you carrying illegal contraband?"  D consented to search

Can PO detain suspect and transport him to stationhouse for questioning based on RS?

PO transported D to stationhouse to be fingerprinted based on RS?

No.

No, but maybe a fieldtest

No absolute limit

1 hour between stop and time D was arrested to wait for drug dog?

Reasonable?

Courts have upheld the use of handcuffs and guns where there is RS to believe that they are necessary to protect the officer from harm during course of stop.

Show of Force During a Terry Stop?

1) Handcuffing armed robber after chasing him down alley in high crime

2)Officer draws gun and points it at head of suspect at close range.

Reasonable based on RS?

90 minute detention because the delay was caused by failure to transport drug detecting dog while plane was in air.

Reasonable detention of property based on RS?

Two hour detention of a travelers luggage pending dog sniff

Search Incident to Arrest

Can warrantless search of D's entire house be justified as incident to that arrest?

1) Reasonable for arresting officer to search person arrested in order to remove any weapons that D might seek to use in order to resist

2) Reasonable for the arresting officer to search for and seize evidence on the arrestee's person in order to prevent concealment or destruction

3) Reasonable to search area into which an arrestee might reach in order to grab a weapon or evidentiary item.  Area within his immediate control

Search Incident to Arrest

Can arrest power rule be invoked for any custodial arrest?

Search Incident to Arrest

Ex. D was arrested for underage drinking but said he had ID in dorm.  PO accompanied him.  Once in room PO saw pot. 

Search Incident to Arrest

Does sequence of search incident and arrest matter?

Search Incident to Arrest

Accused in custody at station, police search footlocker 90 minutes after search.

Search Incident to Arrest?

Suspect who was arrested and jailed during the night for attempting to break into the post office could be search incident to arrest the next morning where PO seized shirt and trousers and analyzed them for paint chips?

Search was incident to arrest

How does this reconcile with previous: Danger of destruction of evidence

Gant Rule (Search Incident to Arrest)

May police search an automobile following the arrest of its occupant if the arrestee has been secured and cannot access interior of the vehicle?

YES,

1) If arrestee is within reaching distance of the passenger compartment at time of search; OR

2) Reasonable to believe (RS) the vehicle contains evidence of the offense of arrest (Ex. Evidence of a traffic violation cant be found in vehicle)

Gant

Search of passenger compartment  while D was secured but wife was not and she was repeatedly entering/exiting vehicle while communicating (against PO orders) to the D in a foreign language.

Does Mistake of Fact negate validity of the stop?

Does Mistake of Law negate validity of the stop?

NO, if reasonable

No, if reasonable

1) Must be immediately apparent to the police that they have evidence before them without need of further search

2) Must have lawful right of access

Valid Plain View Seizure?

1) Pot plant; PO took class on pot

2) Ammo box found with drugs/weapons

3) Notebook when CI informed PO of existence

Carroll allows a car to be searched so long as there is PC to search.

Gant governs suspicionless search incident to arrest.

1) Hot Pursuit

2) Public Safety

3) Risk of Destruction of Evidence

Hot Pursuit?

PO responded to scene of car that had been driven into ditch and the driver who was driving erratically had walked away from the scene.  Officers went into car and took address from his vehicle registration.  PO then went to D's house and arrested D for DUI

Hot Pursuit?

PO approached D in the doorway of her home.  They had PC to arrest her.  Officers chased her into home and arrested her.

Hot Pursuit?

Officers pursued a robbery suspect into suspects home.  In course of looking for him, they also looked for weapons which he might have concealed during the pursuit and found incriminating clothing in a washing machine.

Public Safety Exception?

1) D found outside with blood on clothes, and stated someone in house shot him.

2) Officers entered premises to check out a water leak

3) PO enter apartment when reports of serious domestic disturbance even though the house was quiet when they arrived and no one was home.

4) PO saw juvenile strike adult.

1) PSE

2) No PSE

3) PSE\

4) PSE - do not need ironclad proof of serious, lifethreatening injury

Permissible to seize premises for a reasonable period of time while diligent efforts are being made to obtain warrant. 

1) Occupants are kept out of premises in order to protect against possible destruction of evidence or risk to public safety.

** 48 hour seizure of premises, pending a warrant, reasonable under Segura.***

Segura-Murray Security Sweep

PO, with PC to believe that a man had hidden marijuana in his home, prevented that man from entering home for 2 hours while they obtained search warrant.

• Area wide safety inspections are permissible.  A warrant can be issued based on either PC as to a particular dwelling OR demonstrated compliance with some reasonable administrative inspection scheme.
• Need a warrant.

1) There must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made

2) The warrantless inspections must be necessary to further the regulatory scheme.

3) The statute's inspection program, in terms of the certainty and regularity of its application, must provide constitutionally adequate substitute for a warrant.

1) What suspicion is required of public school kids?

2) Searches of government official office?

1) Prevent public safety hazards (Skinner RR; drug interdiction agents)

2) Minimal discretion invested in those administering program

3) Documented drug problem (not dispositive)

Special Need?

Drug testing of expecting mothers which is then turned over to PO

Drug Testing Reasonable (Lower Courts)

1) Library Workers

2) Teachers

3) Sanitation Workers

1) Not reasonable.  Not handling sensitive info/no evidence of drug problems

2) Reasonable - teachers not subject to daily scrutiny.

3) Reasonable - operate dangerous vehicles.

Not reasonable

1) No documented drug problem

2) Procedure is ineffective

3) Public officials are under daily scrutiny.

Special Needs?

1) Permanent Checkpoints

2) Temporary Checkpoints

3) Drug Checkpoints

1) Yes, permanent checkpoints removed from border are needed to regulate illegal aliens

2) Yes, this upholds road safety

3) No, because it is a law enforcement purpose.  Drug interdiction may be a secondary purpose of a alcohol checkpoint.

Inventory Searches

What are the three legitimate interests in supporting an Inventory search?

1) Protection from false property claims

2) Protection of Property

3) Protection of PO and public from dangerous items

1) Serve a caretaking function

2) Are not designed to uncover evidence of criminal activity.

Inventory Search?

Suspicionless inventory search of impounded car for parking violation.  This included breaking open the glove compartment.

Inventory Search

Search of PO's private car taken to a private garage for his service revolver following a crash

Inventory Searches

Search of D's shoulder bag while he was at the police station for disturbing the peace

Inventory Searches

Does PO have to allow D to make arrangements other than impounding the car?

Inventory Searches

PO had no policy regarding opening of closed containers

SC said that it would be permissible to have a procedure which allowed:

1) Opening all

2) Opening none

3) Opening of closed containers whose contents the PO could not ascertain from examing the exterior.

Reasonable Inventory Searches?

1) Impound a vehicle parked in a locked garage attached to arrestees home

2) Search where PO pried open the panel on a car door was unreasonable.

1) No, serves no inventory purpose

2) D would have no claim to property stored in door panel.

Searches of persons and effects of entrants are not subject to any requirement of RS or PC

Routine vs. Non-Routine Border Searches

1) Drilling hole in the bed of a pickup truck

2) Cutting open spare tire

3) PO pat down and lifting up shirt

4) Canine sniff where canines nose contacts D

5) Turn on laptop and puruse all material therein

6) 100 hour detention, forced use laxatives, monitored bowel movements

7) Strip searches or an x-ray exam (including making D take off artificial leg)

8) Removing gas tank (1 hour process) to check it for pot

1) Routine - minimal damage

2) Routine - does not damage vehicle

3) Routine

4) Routine

5) Routine - necessary for national security

6) RS sufficient

7) RS sufficient

8) Routine - gas tank is not damaged, process is short.

1) Permanent Checkpoints - no RS or PC needed

2) Temporary Checkpoints - searches must be based on PC

3) Roving Patrols - stops must be based on RS

Totality of circumstances

1) Suspects knowledge of right to refuse consent

Consent

Who has burden of proving consent was freely and voluntarily given?

Consent Searches

Can PO threaten to get a search warrant if they don't consent?

Consent

Is refusal to consent an indicia of suspicion?

1. Must have Actual Authority or Apparent Authority (reasonable belief that a person has authority to consent but does not)

2. Mistakes as to the nature of persons who have the authority to search do not confer consent. (Ex. Gardener)

Determined by objective reasonableness. 

Ex. Consent to search car is consent to search paper bag within car.

1) Magistrate is misled by affidavit or given false info

2) Magistrate is rubber stamp

3) PO submits warrant so lacking in indicia of PC as to render belief in its existence unreaonable

4) Warrant fails to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid

5) If the officer knowingly omits material information that would have resulted in the magistrate's refusing to issue the warrant.

Upheld search incident to arrest where clerical error resulting in D having outstanding warrant came up.

-Would not be reasonable if the system routinely led to false arrests

PO commits clerical error resulting in outstanding warrant popping up.    Upheld the resulting search. 

- If recordkeeping error by police is reckless, or knowingly false, exclusion would be justified.

1) Automatic Standing if you are charged with possession

-Overruled where the D has no protection in the area that was searched

Ex. D cannot object to search of womens purse where he stashed drugs

Ex. D cannot object to search of bankers briefcase where his documents were seized.

2) If you are legitimately on the premises at the time of arrest.

- Katz/Jones guides although being on the premises is a consideration

• All evidence is not "fruit of the poisonous tree" simply because it would not have been found BUT FOR the illegal actions of the police.
• The question is whether the evidence to which instant objection is made has been come by at the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Won-Sun Exception

D suspected of murder was illegally seized and brought to PO station.  Was given Miranda twice, confessed once 90 minutes after the arrest and then again 7 hours later.  D moved to suppress as fruit of the poisonous tree

Evidence not admissible.

1) First statement was separated from his illegal arrest by less than 2 hours

2) The illegality here, had a quality of purposefulness because the impropriety of the arrest was obvious

1) Miranda Warnings

2) Temporal Proximity of arrest and confession

3) Presence of intervening circumstances

4) the purpose and flagrancy of the official misconduct.

Wong-Sun Exception?

PO arrested D w/o PC, took him to station for questioning and gave him Miranda.  Time between illegal arrests and confessions was 6 hours.

Wong-Sun Exception?

Miranda warnings given, 45 minute detention was in congenial atmosphere and the statements were spontaneous reactions to the discovery of evidence rather than illegal detention.  PO action was not flagrant misconduct.

Wong-Sun Exception

PO stopped to talk to friend.  While there PO illegally picked up and searched an envelope finding gambling slips.  He learned from his friend, who did not know the PO's discovery, that the envelope belonged to D.  PO relayed this info to FBI who questioned officer friend.  Friend willingly testified.

Independent Source Doctrine

PO unlawfully enter premises and see contraband.  Got warrant not based on anything they saw.  And then re-entered.

No exclusion if government prove:

1) Unlawful entry did not affect the PO's decision to seek warrant; and

2) Did not affect magistrates decision to grant it

General Rule: For exception to apply, the government must show that the illegally obtained evidence would have been discovered through legitimate means independent of the official misconduct.

- If the evidence is actually discovered through indpendent means, the independent source doctrine applies.

Preponderance of evidence that information would be discovered through legal independent means.

-No good faith requirement

Inevitable Discovery?

Inevitable discovery on the basis that there was PC to obtain a warrant but the PO searched without one?

1) Impeach when D lies on cross

2) Impeach when D lies on direct

***Impeachment does not extend to defense witnesses who are not the defendant***

Does exclusionary rule apply to:

1) Grand Jury Proceedings

2) Habeas Corpus proceedings

3) Parole Revocation

4) Sentencing hearings

Inapplicable to all.

Lower courts have found inapplicable to sentencing hearings.

1) Must be compelled to bear witness against self

2) Testimony must be incriminating

3) Must be used in criminal case or potentially used in criminal case.

Does use of compelled statement at a bail or pretrial release hearing trigger 5th Amendment protections?

In an affidavit filed in support of a criminal information?

1) Clemency Proceedings

2) Probation Revocation Proceedings

3) Foreign Prosecution

1) Use of contempt power

2) Other state-imposed sanctions

Compulsion

Contractor could be denied public contracts.

Compulsion

Benefit-Penalty Distinction?

1) May not make adverse comment to jury about invocation of privilege at trial

2) Prosecutor may point out in closing that D had oportunity to testify when defense counsel opens door by saying that D had not been permitted to explain his side of the story.

Exculpatory "No" Doctrine

Can a partnership claim the 5th?

Can a sole propreitorship?

NO

YES

1) Drawing blood

2) fingerprinting

3) Requiring participation in lineup

4) Handwriting Exemplars

5) Voiceprints'

6) Sobreity tests

Testimonial?

D was pulled over on suspicion of DUI.  After failing sobriety tests PO arrested D.  Without giving Miranda, PO asked D the date of his 6th birthday.  D responded in a slurred speech.

1) No, in part.  Requiring D to reveal the physical manner in which he articulates words is not testimonial

2) Yes, in part.  His answer to birthday question was testimonial.  Incriminating influence of impaired faculties stemmed not just from slurred but also from fact that D did not know date of birthday.

1) In certain case, the existence of records is in fact incriminating.  Ex. Corporation having a second set of books

2) Admission of control when it creates an inference of affiliation with another person or business that itself tends to incriminate.

3) Act of production is incriminating when its production is a roadmap to additional incriminating info that the government did not have.

***However, even if act of production would be incriminating, the 5th Amendment will not apply if existence and control of the records are a foregone conlusion due to substantial independent answers that the records exist, the witness controls them, and the records are authentic**

D admission

Handwriting exemplar

Even if docs are prepared under compulsion, their contents as well as the act of production will be unprotected by the 5th if the government requires the documents to be kept for:

1) Legitimate administrative purpose

2) Is not solely focused on those inherently suspected of criminal activity

Under the Required Record Exception the government may:

1) Require records be kept

2) punish those who do not keep the records

3) punish those who keep false records

4) punish those who truthfully admit criminal activity in the compelled records

Valid Required Records Exception?

1) Gov requires D to register and pay an occupational tax for engaging in the business of accepting unlawful gambling wagers?

2) Statute required person involved in accident to stop and leave name and address?

1) No, this is solely focused on those inherently suspected of criminal activity

2) Yes, scheme was regulatory and noncriminal.  Not aimed at highly selective group suspected of criminal activity.

1) Criminal D need not take the stand and assert privilege at his own trial

2) Witness failure to invoke privilege is excused where governmental coercion makes his forfeiture of the privilege involuntary

1) Due Process Clauses of the 5th and 14th have been used to exclude INVOLUNTARY CONFESSIONS

2) 6th Amendment right to counsel has been applied in determining admissibility of confession obtained from D AFTER they have been charged with crime

3) 5th Amendment privilege against self-incrimination has been applied to statements made during custodial interrogation, unless the suspect, after receiving warnings makes a knowing and voluntary waiver of the right (MIRANDA)

1) Personal Characteristics - Youth, Education Background, Mental Deficiency, Experience in Criminal Justice Proceedings

2) Psychical Deprivation - Denial of food or sleep, police brutality

3) Psychological Pressure (Accorded great weight) - Reverse lineups, skillful and suggestive

4) Warning the accused of their right to remain silent.

1) 6th Amendment doesnt apply until suspect formally charged

2) Miranda can be waived, while the right to be free from coercion cannot

3) There are several exceptions to Miranda.

Involuntary Confession?

PO made false promises to D, falsely stated that they had all the evidence, called D "brother."

Involuntary Confession

PO fabricated a scientific report from a DNA testing lab in order to get confession?

Involuntary Confession

PO falsely told D that medical report stated cause of death was due to their actions.

Can an officer make a specific promise that the D's statement will not be used against him?

Can PO promise specific benefit for confessing and promise is not kept

1) Showing D fake sympathy

2) Reducing the suspects feeling of guilt through lies

3) Exaggerating the crime in an effort to get the suspect to negotiate

4) Lying that the "game is up" because evidence is so strong

What are the Miranda Warnings?

1) Must be informed in clear terms that he has the right to remain silent

2) Anything you say can and will be used against you

3) You have a right to an attorney.

4) If you cannot afford an attorney, one will be provided for you

- need not be given if abundantly clear person can obtain lawyer

MIRANDA

Do PO have to retain lawyer for you?

MIRANDA

IF interrogation continues w/o presence opf lawyer may its product ever be used in trial?

MIRANDA

Express statement that the individual is willing to make a statement and does not want an attorney closely followed by statement.

WAIVER?

Miranda

Does answering some questions or volunteering some statements deprive one from refusing to answer others?

MIRANDA

If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible.

True or False?

YES

NO

1) The officers were in bad faith in not giving the warnings before the first confession

2) The second confession proceeded directly from the first.

Yes, Miranda is violated upon admission of unwarned statements into evidence at trial.

EXCLUDED

Emergency Exception to Miranda?

1) Asking D about the location of the gun

2) Asking D why he needed gun?

3) Asking D if he had any drugs or needles on his person?

1) Yes

2) NO

3) Yes

Custody?

1) agents met D in public at restaurant of her choice, did not display weapons, did not require her to meet them, and allowed her to leave thereafeter?

2) Two IRS agents arrive at D's home, were invited in, and sat with D at dining room table to discuss their investigation of tax returns?

1) Not arrested

2) Not arrested

Not per se. (only one indicia)

Ex. D not incustody where prisoner was escorted to conference room and questioned for 5-7 hours.  D was told twice he could leave; D was not physically restrained and the door was sometimes left open.

D in custody when he agrees to accompany PO to station?

Teen brought to station by parents in custody?

Required meeting with probation officer?

No

NO

NO

1) Whether D was informed at the time of question was voluntary, that suspect was free to leave, or that the suspect was not considered under arrest

2) Whether suspect possessed unrestrained freedom of movement during questioning

3) Whether the D initiated contact with authorities or voluntarily acquiesced to official request to respond to questions.

4) Whether strong arm tactics were employed

5) Whether the atmosphere of the questioning was police dominated

6) Whether D was placed under arrest at termination of questioning.

Innis:

1) Interrogation after being taken into custody

2) Funcional Equivalent of Interrogation - any words or action on part of police (outside of those normally attendant to arrest/custody) that police should know are reasonably likely to elicit an incriminating response from the suspect

Interrogation?

PO arrested D.  Wife arrived and asked to speak to him and D confesses after.

Interrogation?

PO leaving two D's in same room which was monitored 

Interrogation?

PO making out-loud statement to another officer that they should charge D's daughter for drug possession due to drugs found in his home.

Interrogation?

Officers played D a recorded statement of an associate implicating him in a crime

Interrogation when D is confronted with evidence

Ex. Interrogation where PO placed evidence in front of cell

Ex. Interrogation where D is shown a video depicting him engaged in criminal act

Ex. Interrogation not found where D was told he was identified  by eyewitnesses

Ex. Interrogation not found where D is told of nature of evidence against him

Interrogation?

Directly telling D that "most of the blame will fall on your shoulders" constitutes interrogation

Can ask questions related to booking such as name, age, etc and any evidence elicited as a result of these questions is excepted from Miranda (such as stumbling over and giving incorrect answers after a DUI).  

Booking exception does not apply if such questions were "designed to elicit incriminatory admissions"

Booking Exception?

Questions concerning when suspect arrived at the house and where drugs were sent and how he got there.

Booking Exception?

Questions about gang affiliation

Booking Exception?

PO asking D's name even if they know already

Neither an express statement of waiver nor a written waiver is required so long as there is sufficient evidence to show:

1) The suspect understood his rights

2) Voluntarily waived them

Knowing and Voluntary?

PO read rights, asked D if he understood, D said yes.  Immediately after D answered questions.

Knowing and Voluntary Waiver?

PO read rights, D was familiar with CJ system and answered some questions while refusing others

Knowing and Voluntary?

D voluntarily waived rights, after waiver she was told her children were at station and could not be picked up by a relative until she confessed

Knowing and Voluntary?

Statement taken while D was in pain at hospital

Knowing and Voluntary

If there is a language barrier

Interrogation is not forever barred.  Invocation of Miranda must be

1) "Scrupulously honored"

2) Knowing and Voluntary Waiver

1) PO immediately ceased interrogation upon invocation

2) PO resumed questioning only after the passage of a significant period of time

EXCEPTION: Court would not tolerate repetitive and continuous attempts to interrogate a suspect who wished to remain silent

3) Questioning was from a new PO

4) PO provided new warnings

5) Restricted 2nd interrogation to a crime that had not been the subject of the earlier interrogation

Scrupulously Honoring an Invocation of Silence (Waiver Valid?)

1) D asked whether he owned a certain hat two mins after invoking right to silence

2) D given last "opportunity to help himself" 20 mins after invoking

3) 4 hour break in questioning

4) Suspect was approached 4 times to determine whether he had changed mind

5) Warnings were frequently given and D was allowed to control subject matter

1) Invalid

2) Invalid

3)Valid

4) Invalid

5) Valid

Scrupulously Honoring Invocation of Silence (Vald Waiver?)

1) PO put D in an interrogation room with alleged accomplice after accomplice agreed to confess

2) PO placed D in interrogation room for hours with timeline of murder investigation and photos of body

1) Invalid

2) Invalid

Invocation of right to remain silent must be unambiguous and unequivocal

After giving Miranda warning, PO may interrogate a suspect who has neither invoked nor waived his or her Miranda Rights

Not unless D himself initiates further communication, exchanges or conversations with police.

However, if PO renewed contract does not rise to interrogation or its functional equivalent, Miranda is inapplicable

Sufficient for Invocation?

1) "My daddy wants me to get a lawyer"

2) "My lawyer told me to keep my mouth shut"

3) "I guess you better get me a lawyer"

4) "Can I call a lawyer now?"

5) D directed PO to call his attorneys phone #

6) When asked if he wanted a lawyer D stated, "Uh, yeah I'd like that."

1) Insufficient

2) Insufficient

3) Insufficient

4) Insufficient

5) Sufficient

6) Sufficient

Edwards applies for 14 days after release and the abdicates

6th Amendment right to counsel, rather than the Miranda right to counsel.

- No edwards protection (Edwards can only be invoked in the context of custodial interrogation)

Massiah Rule?

Drugs found on D1's ship.  D1 was arrested, arraigned, and indicted on possession.  D1 plead not guilty.  A few days later a PO and co-conspirator (D2) installed a radio transmitter under front seat of D2 automobile for purposes of D1 making incriminating statement to D1.  D1 and D2 met, D1 made incriminating statements

"Deliberate Elicitation" 6th Amendment Right to Counsel?

1) PO does not behave like someone trying to elicit info (most important)

2) PO is taking no notes, or compiling a report on convos with D

3) PO doesnt disclose confession for period of time; PO had no responsibility for eliciting reporting info for use in D's case and was not working with anyone who did (Guard frienship with inmate)

Deliberate Elicitation?

PO puts jailhouse informant in close proximity with D and D made statements to the informant without any serious effort on the informants part to elicit. (The listening Post)

Approaches by Circuit: