Criminal Procedure 9781423219750, 9781423233091

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AMERICA’S #1 LEGAL REFERENCE CHART

CRIMINAL PROCEDURE

LA

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4 This symbol denotes recent rulings decided by the U.S. Supreme Court during its current term

Abbreviation key: A. = Amendment; Art. = Article

SOURCES OF CRIMINAL PROCEDURE LAW

OVERVIEW OF A CRIMINAL PROCEEDING

The U.S. Constitution, specifically the Bill of Rights, is the source for criminal procedure law

• PROBABLE CAUSE FOR ARREST A. Initial appearance before magistrate judge, where 1. Prior to any arrest, police must have probable cause defendant learns charge against him/her and his/her to believe that a crime has been committed and the liberty is subject to restriction; marks the initiation suspect being arrested has committed that crime of adversary proceedings that trigger attachment of A. Felony or misdemeanor arrests conducted in a suspect’s 6th A. right to counsel home require a valid arrest warrant [Payton v. NY] B. It is not required for the public prosecutor to be B. Felony or misdemeanor arrests made in a public place aware of the initial proceeding or involved in it for can be with or without a warrant [U.S. v. Watson] the 6th A. right to counsel to attach [Rothgery v. C. Misdemeanor arrests without a warrant can only be Gillespie Cnty.] for offenses committed in the officer’s presence 3. The 6th A. right to speedy trial attaches • POLICE STATION BOOKING A. Speedy trial applies to federal prosecutions and to 1. Suspect’s file is opened (fingerprints, booking photos, state prosecutions by the 14th A.’s Due Process Clause and pertinent information, such as date of birth, i. “Good-cause continuances” are allowed upon height, weight, etc.) court finding [NY v. Hill] 2. Pursuant to a lawful arrest, an arrestee’s person and ii. Defendant may not prospectively waive speedy trial belongings are subject to an inventory search conrights “for all time” [Zedner v. U.S.] sistent with standard inventory procedures [IL v. • PRETRIAL Lafayette] 1. Pretrial motions 3. If an arrestee is being placed in the jail population, the A. Motion to suppress: A motion to exclude evidence arrestee can be strip searched, even if the arrest is for a that was obtained in violation of defendant’s constiminor offense [Florence v. Bd. of Chosen Freeholders tutional rights of the Cnty. of Burlington]✔ i. EX: Motion to suppress fruits of an illegal search 4. Police reports are submitted with a request for or seizure prosecution ii. EX: Motion to suppress an un-Mirandized confession • FILING CHARGES B. Motion to dismiss: A motion to dismiss charges 1. Prosecutor has discretion to approve, deny, upgrade, i. EX: Motion to dismiss based on insufficiency of or downgrade the charges requested or request addicharging document’s allegations and/or lack of tional investigation prior to filing charges notice to defendant 2. If there is sufficient evidence, prosecutor files a crimii. EX: Motion to dismiss based on venue of the prosinal complaint ecution and/or joinder or severance of the charges • FIRST APPEARANCE or defendants [FRCP 18, 21(a), 8, 14] 1. Promptly following a custodial arrest, within a maxiii. EX: Motion to dismiss based on constitu­ tional imum of 48 hours, the arrestee is taken for a hearing overbreadth or vagueness of the statute before a magistrate or judge and advised of [Gerstein • MOTION FOR DISCOVERY v. Pugh; Cnty. of Riverside v. McLaughlin]: 1. Prosecution’s duty to disclose includes documents, A. The charges against him/her tangible objects, and lists of witnesses the prosecution B. The right to counsel and/or indigent appointment of intends to call at trial counsel A. Due Process requires the prosecution to disclose C. Bail: Amount is set or the defendant is released on to the defense any exculpatory evidence within the his/her own recognizance prosecution’s possession [Brady v. MD] i. Bail is the amount of money the defendant must 2. Defendant’s duty to disclose is more restricted than post with the court in order to be released; defenprosecution’s (includes advance notice of alibi and dant forfeits this money if he/she does not show up insanity defense) at subsequent court proceedings • TRIAL D. Hearing: Date is set for preliminary hearing 1. Jury trial: Federal level and all states give the defendant • PRELIMINARY HEARING the right to a jury trial if charged with a felony or a 1. Live witnesses, prosecution, and defendant with misdemeanor punishable by more than 6 months in jail counsel are present 2. Confrontation Clause 2. Magistrate determines whether there is probable cause A. The 6th A. gives the defendant the right to confront sufficient to believe the suspect committed the crime the witnesses against him/her and to bind the case over for trial i. Applies to the states by way of the 14th A. • INFORMATION OR INDICTMENT ii. Includes defendant’s right to be present at trial 1. Information iii. Applies at trial, not at preliminary hearing A. After a finding of probable cause at the preliminary [Peterson v. CA (9th Cir.)] hearing, prosecutor prepares and files information B. Defendant’s right to cross-examine witnesses alleging all the charges with the trial court, which C. Crawford rule: Otherwise-admissible hearsay replaces the criminal complaint evidence offered against defendant may still be B. If there is no finding of probable cause at the prelimiexcluded under 6th A. Confrontation Clause nary hearing, the criminal complaint is dismissed grounds if the hearsay evidence is “testimonial”; and no information is filed “non-testimonial” hearsay evidence does not violate 2. Indictment the Confrontation Clause [Crawford v. WA] A. A grand jury hearing is an ex parte presentation i. Non-testimonial statements are “statements…made of evidence by the prosecutor to the grand jurors in the course of a police interrogation under circumwithout defendant or defense counsel present stances objectively indicating that the primary purB. If the grand jury decides there is sufficient probable pose of the interrogation is to enable police assistance cause to support the charges, the prosecutor prepares to meet an ongoing emergency” [Crawford] and files an indictment with the trial court (a) EX: 911 call made for emergency assistance C. If the grand jury fails to find sufficient probable describing ongoing events as they were happening; cause to support the charges, no indictment is filed statements elicited from 911 caller were needed D. A defendant charged with a federal felony may only to respond to the ongoing emergency; statements be tried pursuant to a grand jury indictment were made during informal questioning, unlike a • ARRAIGNMENT formal station house interrogation [Davis v. WA] 1. The defendant pleads guilty, no contest (nolo conten(b) EX: Testimony of an expert witness about a thirddere), or not guilty to the information or indictment party DNA test not offered for the truth of the 2. The 6th A. right to counsel attaches matter asserted but instead admitted to provide a

1. Originally enacted for the purpose of limiting the federal government exclusively and not for limiting state government 2. Pertinent amendments: A. 4th A.: Freedom from unreasonable searches and seizures i. Applies to both searches and seizures of property and to arrests of persons B. 5th A.: Freedom from self-incrimination (involuntary confessions); federal Due Process Clause C. 6th A.: Right to assistance of counsel; right to a speedy trial i. Right to a speedy trial applies directly to federal prosecutions and applies to state prosecutions by way of the 14th A.’s Due Process Clause 3. The U.S. Constitution sets out the minimum constitutional rights for criminal investigations and prosecutions; however, state constitutions can provide additional rights and limitations on government

THE 14TH A. & ITS INCORPORATION BY THE STATES 1. The 14th A. provides that no state “may deprive any person of life, liberty, or property, without due process of law” 2. Incorporation of the 14th A. extends Due Process requirements provided under the Bill of Rights to the states • INCORPORATION DEBATE 1. Extent to which the 14th A. makes the Bill of Rights apply to the states 2. Majority view: Selective incorporation A. Not all rights in the Bill of Rights apply to the states, but only as particularly necessary to fundamental fairness [Duncan v. LA] 3. Most pertinent amendments of Bill of Rights have been incorporated A. The 4th A. freedom from unreasonable searches and seizures [Mapp v. OH] B. The 5th A. privilege against self-incrimination [Malloy v. Hogan] C. The 5th A. guarantee against double jeopardy [Benton v. MD] i. Does not include civil forfeiture [U.S. v. Ursery] D. The 6th A. right to counsel [Gideon v. Wainwright] E. The 6th A. right to a speedy trial [Klopfer v. NC] F. The 6th A. right to confront witnesses [Pointer v. TX] G. The 6th A. right to an impartial jury [Duncan v. LA] i. Does not extend to petty offenses [Lewis v. U.S.] 4. Recent Supreme Court cases interpreting clauses apply to states A. State liberty interests protected by Due Process Clause are generally limited to freedom from restraint, which imposes a typical and significant hardship on inmate in relation to ordinary prison life [Wolff v. McDonnell] B. Segregation for misconduct and refusal of presentation of witnesses at disciplinary hearing are not protected liberty interests [Sandin v. Conner] 5. Only 2 Bill of Rights guarantees have not been extended to the states: A. Right not to be subject to excessive bail B. Right to a grand jury indictment in felony cases [Hurtado v. CA] 6. Minority view: Total incorporation A. The effect of 14th A. is to make all Bill of Rights guarantees directly applicable to the states • STATE & FEDERAL STATUTES & RULES

Procedures set forth for administration of criminal justice

1. These procedures must not violate the U.S. Constitution A. EX: Federal wiretapping statute cannot authorize conduct that is prohibited by 4th A. search and seizure guarantees 2. Federal rules of criminal procedure are applicable only to federal crimes 3. State constitutions may provide additional rights beyond federal law, but not less A. The selective incorporation doctrine requires state courts to apply nearly all the guarantees of the Bill of Rights in state criminal trials i. States are free to place additional criminal safeguards in their own state constitutions ii. If a state constitution’s clause articulates the same guarantee as the U.S. Constitution, state courts are free to interpret their state’s clause to provide more individual protection than the U.S. Supreme Court’s interpretation of the federal clause

1

Overview of a Criminal Proceeding (continued )

basis for the expert’s conclusions reached is admissible as non-testimonial and doesn’t violate Confrontation Clause [Williams v. IL]✔ ii. Testimonial statements are statements made “when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” [Crawford] (a) EX: Police questioned domestic violence victim at the scene and obtained oral and written statements from victim that defendant had battered her; the U.S. Supreme Court found statements testimonial because statements were the product of deliberate police questioning about past criminal activity to investigate possible crime for later prosecution [Hammon v. IN] .

(b) EX: Forensic analyst’s lab report prepared for criminal prosecution constitutes an affidavit that is testimonial [Melendez-Diaz v. MA] iii. Crawford rule does not apply retroactively on collateral review of conviction [Whorton v. Bocking] iv. Crawford rule still applies in murder cases; in order for a criminal defendant to “forfeit” his/her confrontation rights, the government must prove that the defendant murdered victim/declarant with the intent to make victim/declarant unavailable as a testifying witness [Giles v. CA] D. Compulsory process: Defendant has a right to present a defense case i. Includes defendant’s right to issue subpoenas and to have the court issue a subpoena to compel testimony of

witnesses with information pertinent to his/her defense, if necessary 3. Defendant’s right to remain silent and not to testify at trial A. The 5th A. states that no person “shall be compelled in any criminal case to be a witness against himself ” B. Applies to states through the 14th A.’s Due Process Clause i. Jury instructed that the fact that defendant does not testify cannot be used as evidence of guilt ii. Prosecutor may not comment on defendant’s silence 4. Presumption of innocence A. Defendant is presumed innocent until proven guilty beyond a reasonable doubt [In re Winship] B. Although defendant has a right to present a defense case, defendant is not required to present a defense case

THE 4TH A.: RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE • DEFINITION 1. Guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” 2. Includes searches and seizures of property and arrests of persons • LIMITATIONS 1. Limited to conduct by the government or an agent of the government 2. Certain acts by private persons may be deemed “governmental” A. Act as agent/instrument of government B. Act due to government domination or coercion C. Government participates too much in conduct • WHAT IS A SEARCH? 1. Old approach A. Trespassory invasion of person or tangible property [Olmstead v. U.S.] i. Needed actual “physical invasion” ii. Wiretapping from outside a building is not a search because there is no physical invasion iii. Did not include blood tests, which did not “shock the conscience of the court” and therefore not an unreasonable search [Schmerber v. CA] 2. Modern approach A. Two-prong test for when a reasonable expectation of privacy is violated [Katz v. U.S.] B. A 4th A. search occurs only if the following 2 prongs are met: i. Prong 1: Actual expectation of privacy (subjective) ii. Prong 2: Expectation must be one that society is prepared to recognize as reasonable (objective) iii. When both prongs are met, it equals 4th A. search and a valid search warrant or an applicable search warrant exception is required prior to search (a) EX: Knowing exposure to public (even in home or office) is not a search because it fails prong 1, thus not subject to 4th A. protection (b) EX: That which individual seeks to keep private (even in public places) satisfies prong 1, thus may be protected by the 4th A. (c) EX: Subjective desire for privacy often shown by taking steps to shield area, item, or activity from observation (d) EX: Use of infrared scanning of one’s home is a 4th A. search, which requires a search warrant [Kyllo v. U.S.] C. Post-Katz, a 4th A. search can still be found based on trespass theory; government intrusion into physically occupied private property for the purposes of obtaining information is a search for 4th A. purposes [U.S. v. Jones]✔ i. EX: Government installation of a GPS tracking device on a suspect’s vehicle on private property constituted a search for 4th A. purposes and thus required probable cause and a warrant [U.S. v. Jones]✔ D. Routine traffic stop i. If suspect is validly arrested during a routine traffic stop, suspect’s person and vehicle can be searched without a search warrant (search incident to arrest exception) [Chimel v. CA; People v. Belton] ii. Limitation: Search of the vehicle based on the arrest alone is reasonable only if there is an actual and continuing threat to officer’s safety or preservation of evidence [AZ v. Gant] iii. Issuing a citation during a routine traffic stop does not allow officer to search without a search warrant [Knowles v. IA] iv. If police have probable cause to believe evidence or contraband is located in the vehicle, vehicle can be searched without a search warrant (automobile exception) [Carroll v. U.S.]

v. Lawful traffic stops entail the temporary seizure of driver i. No reasonable expectation of privacy in VIN, since and passenger [AZ v. Johnson] required by law to be visible 3. Unreasonable expectation of privacy (not a search for N. Abandoned property: Generally, no reasonable expectation 4th A. purposes) of privacy in abandoned houses, vehicles, or motel rooms A. Area cannot support privacy or type of information is not O. Overnight guest generally has a legitimate expectation private of privacy in the house he/she is staying in, and police B. Abandoned items, such as garbage left out for collection cannot make a warrantless search or arrest on premises [CA v. Greenwood] [MN v. Olson], but a visitor present with the householder’s C. Things left in “plain” or open view have no legitimate consent, purely for a commercial purpose, for a short expectation of privacy; “plain smell” and “plain touch” also period of time, and without any previous connection with have no privacy expectation [AZ v. Hicks; Horton v. CA; the householder or the premises has no 4th A. privacy MN v. Dickerson] protection [MN v. Carter] nor does public housing tenant D. Most observations from lawful or reasonable vantage under Anti-Drug Abuse Act [HUD v. Rucker] points, including public roads or private property observ- • SEIZURES ARE PROTECTED BY THE 4TH A. able from public areas, or private areas to which public or 1. Property: Property is seized once government substantially police have been invited interferes with one’s possessory interest (dominion and E. Most aerial overflights [CA v. Ciraolo] control) [TX v. Brown; U.S. v. Jacobsen] F. Most uses of devices to enhance senses (i.e., binoculars, A. EX: Electronic beeper monitoring of the transport of flashlights, electronic beepers, drug-sniffing dogs, contorted personal property does not substantially interfere with positions) possessory interest nor invade privacy rights and thus found i. Police may use drug-sniffing dogs at routine traffic not to be a search or seizure [U.S. v. Knotts; U.S. v. Karo] stops, without reasonable suspicion for drugs, provided B. EX: Voluntary transfer through sale is not seizure [MD v. additional dog sniff does not unreasonably extend the Macon] time of the traffic stop [IL v. Caballes] C. EX: Removal of mobile home is seizure [Soldal v. Cook ii. Dog’s alert to the presence of contraband creates suffiCnty.] cient probable cause for an auto search without a warrant 2. Persons: A person is “seized” if, considering all G. Open fields beyond “curtilage” of home [Oliver v. U.S.] the surrounding circumstances, a reasonable person i. Steps owner takes are irrelevant (i.e., signs, gates) believes he/she is not free to leave or to terminate ii. Curtilage still protected; extent of curtilage [U.S. v. encounter [U.S. v. Mendenhall; FL v. Bostick] Dunn] “PINS”: A. If seizure occurs, 4th A. is triggered and government must (a) Proximity of area to home have appropriate justification for the seizure (b) Whether area is Inside fence around home i. Two types of seizures; each has different requirements (c) Nature and uses to which area is put and analyses (d) Steps taken to protect area from observation ii. Arrest requires government to show probable cause: iii. No such thing as “industrial curtilage” [Dow v. U.S.] (a) That a crime was committed, and H. Prison cell has no privacy expectation [Hudson v. Palmer] (b) That arrestee committed that crime i. Suspicionless searches of parolees not prohibited iii. Temporary detention/Terry “stop and frisk” requires [Samson v. CA] reasonable suspicion [Terry v. OH]: I. Contraband: Yes/no test [U.S. v. Jacobsen] (a) Articulable facts and circumstances that reasonably i. A field test is performed to see whether or not substance lead police to believe crime is afoot and/or suspect is is contraband armed and dangerous ii. Not a search because: (b) Lower standard than probable cause (a) No legitimate expectation of privacy in whether or not (c) Allows a short detention something is contraband; information that something (d) Allows frisk-type search of suspect’s outer clothing is contraband is not private information iv. EX: In routine traffic stop, both driver and passenger are (b) Destroying a small amount of drug for testing purposes seized [Brendlin v. CA] is a “seizure” but not an unreasonable one B. If seizure does not occur, 4th A. does not apply and no (c) Caution: If the contraband tested was obtained due to government justification is needed; the incident is considprior illegal search or seizure, the “fruit of the poisonered a consensual/voluntary encounter ous tree” doctrine will apply to the results of the test i. EX: Police approaching and asking questions is not autoJ. “Controlled delivery” of previously (lawfully) opened matically a seizure; stop and talk considered a valid conpackage sensual encounter that does not trigger 4th A. protection i. Time was short enough that there was no reasonable likeli(a) Factual question of whether reasonable person would hood contents had changed [IL v. Andreas] feel free to leave or ignore the request and end the K. Pen registry (record of phone numbers dialed) encounter sufficient to trigger seizure i. A pen registry is not a search for 4th A. purposes; (b) Generally, talking to police is not a seizure, but demand government may use a pen registry without obtaining a by police is search warrant ii. Police encounters in constricted areas (e.g., bus ii. Rationale: Individuals have no justifiable expectation sweeps) are not automatically seizures because individual of privacy in information they voluntarily disclose to voluntarily placed self in a confined area [U.S. v. a third party (e.g., the phone company); additionally, a Drayton] pen registry only records the minimal information of the (a) Factual question of whether reasonable person numbers dialed, not the contents of phone conversations would believe he/she could ignore request and [Smith v. MD] terminate encounter L. Reopening doctrine: After private search, intrusion of C. Pursuit by police: No seizure until physical force applied privacy occurs only when government search exceeds the to suspect’s body or suspect surrenders to authority [CA scope of the private search [U.S. v. Jacobsen] v. Hodari D.] i. The 4th A. applies only to government action D. The 4th A. requires all seizures of persons be done reasonM. VIN: Police at traffic stop may reach into car to clear away ably and absent of excessive force [Graham v. Connor] anything obscuring vehicle identification number 2

i. Deadly force may be used to seize a felony suspect if it is necessary to prevent escape and police have probable cause that suspect poses a significant threat of death or serious physical injury to police or others [TN v. Garner] (a) EX: Police fatally shooting an unarmed, non-dangerous felony suspect fleeing from an alleged residential burglary found to be unreasonable seizure [TN v. Garner] (b) EX: Police terminating a high-speed car chase by ramming the suspect vehicle’s bumper and running suspect’s vehicle off the road, which caused suspect to become a quadriplegic, was found to be reasonable seizure [Scott v. Harris] E. “Stop and identify” state law statutes i. In order for state law to be constitutionally valid, 4th A. requires that the “stop” be a lawful seizure based on reasonable suspicion or probable cause prior to requesting suspect to “identify” [Brown v. TX] ii. Additionally, the request to “identify” must be reasonably related to the “stop” and must not change the nature of the “stop” or its duration [Hiibel v. 6th Jud. Dist. Ct. of NV]

REASONABLENESS • SCOPE 1. The 4th A. protects against unreasonable searches and seizures 2. If government intrusion is unreasonable, the 4th A. is violated 3. Standards used to determine reasonableness depend on circumstances • PROBABLE CAUSE 1. Definition: Facts and circumstances sufficient for a reasonable person to believe crime is more likely than not; thus, the proposed arrest or search is justified A. Probable cause to arrest needs trustworthy evidence that: i. Suspect committed the violation ii. The violation has been committed (a) EX: Police observing a minor traffic violation creates sufficient probable cause for stopping the vehicle and/or arresting [Whren v. U.S.; Atwater v. City of Lago Vista] B. Probable cause to search particular premises needs trustworthy evidence that: i. Particular items searched for are connected with criminal activity ii. Items are likely to be found at the location searched C. Government must act reasonably with regard to the quality of their information, as well as reasonably with their execution of the search or arrest i. EX: “Knock and announce” rule is part of the reasonable execution of a search warrant [Wilson v. AK] (a) Police must knock and announce their presence prior to entry to execute search warrant unless it is too dangerous to do so [Richards v. WI] ii. EX: Detaining resident outside home while awaiting valid search warrant is reasonable [IL v. McArthur] 2. Most government intrusions that are predicated by probable cause and a warrant are deemed reasonable 3. Most exceptions to the independent warrant requirement still require probable cause to exist prior to government intrusion in order for it to be reasonable 4. Standard is the totality of the circumstances [IL v. Gates] A. Whether an informant’s information creates probable cause is determined by “totality of the circumstances” B. Totality of circumstances takes into account all circumstances C. Any trustworthy information can be considered, notwithstanding inadmissible evidence at trial D. Totality of circumstances standard replaces the more restrictive 2-prong Aguilar-Spinelli test in which both prongs had to be satisfied: i. Prong 1: Informant must be reliable (focus on informant’s veracity; e.g., reliability in past or independent corroboration of information given by anonymous informant), and ii. Prong 2: Informant’s basis of knowledge must be reliable (e.g., personal knowledge is best; credible details given within the statement help show basis of knowledge) E. After Gates, as long as a neutral magistrate can determine arrest or search is justified, based on informant’s information and all other available facts, there is probable cause to arrest or search and warrant can issue i. Effect: 2 prongs are now relevant factors, not requirements, in determining whether the totality of the circumstances satisfy sufficient probable cause ii. Consequence: Strong showing on one prong can make up for lesser showing on other (i.e., particularly reliable informant with a failure to articulate basis of his/her knowledge is not a complete bar to probable cause finding) F. Same totality of circumstance approach is used to determine reasonable suspicion for temporary detentions but needs less information and can be less reliable because reasonable suspicion is a lower standard [FL v. J.L.; U.S. v. Arvizu] • REASONABLE SUSPICION 1. Officer must articulate a reasonable basis for suspicion that crime is afoot 2. More than hunch but less than probable cause 3. Standard is the totality of circumstances 4. Requires individualized suspicion • SPECIAL STANDARDS FOR REASONABLENESS: BALANCING APPROACH 1. In some special cases, reasonableness is determined by balancing significance of government special need vs. level of privacy intrusion 2. In some cases, less than probable cause is required A. EX: Terry “stop and frisk” only need reasonable suspicion [Terry v. OH] B. EX: School searches, administrative searches, border searches [NJ v. T.L.O.; U.S. v. Flores-Montano] 3. Some cases do not require individualized suspicion A. Drug testing with a compelling non-prosecutorial public safety need [Skinner v. Railway Labor Executives’ Ass’n; Ferguson v. City of Charleston] B. Roadblocks for public safety or information gathering, not general crime detection [U.S. v. Edwards; MI Dep’t of State Police v. Sitz] 4. In some cases, more than probable cause is required A. EX: Using deadly force to apprehend a dangerous fleeing felon [TN v. Garner; Scott v. Harris] i. Probable cause required, plus assessing threat of harm to police and others before deadly force can be used B. EX: Surgery to recover evidence i. Probable cause required, plus risk to subject and degree of intrusiveness must not outweigh need for evidence 3

WARRANT REQUIREMENT OF THE 4TH A. The 4th A. states, “No Warrants shall issue, but upon probable cause,” which is required for both search warrants and arrest warrants • SEARCH WARRANTS 1. Must be issued by a “magistrate” or judicial officer A. Must be neutral magistrate; not connected to law enforcement; no pecuniary interest in the matter; cannot actively participate in the search 2. Affidavit: Police officer must recite facts establishing probable cause on a written, signed affidavit A. Information in affidavit must be recent enough to believe items still there B. Under reasonable circumstance, warrant may be issued based on phone or fax [FRCP 40(c)(2)(A)] C. Ambiguous warrant not accompanied by itemized list held invalid [Groh v. Ramirez] 3. Place to be searched must be so precise as to allow determination of location without officer’s discretion A. Based on facts as officer reasonably believed them to be (e.g., when officers search apartment that turns out to be duplex, the warrant is valid, even though overbroad, because there was no way to know this from the outside) [MD v. Garrison] B. Search confined to an area specified in warrant and places where the items possibly might be concealed 4. Property to be seized must be specifically identified in warrant, so no discretion of the officer A. No “general warrants” (e.g., “any contraband” is too vague), but i. “Other fruits, instrumentalities, and evidence of crime” is held to refer to a particular crime and lot of property in the warrant, so not vague [Andresen v. MD] ii. “Illegal drugs” held not too vague iii. Anticipatory warrants are valid, provided: (a) Probable cause that the evidence sought will be found at a particular location when search warrant is executed, even if the evidence is not there when the search warrant is issued; (b) Probable cause that the triggering condition will occur; and (c) Police cannot execute anticipatory search warrant before triggering condition occurs [U.S. v. Grubbs] B. When 1st A. is involved (i.e., obscene materials), description of things to be seized must be very specific [Marcus v. Search Warrant of Kansas City] C. Vehicle searches: When warrant is required for vehicle search, warrant should include license number or model and name of owner [Coolidge v. NH] 5. Manner in which search warrant is executed: Search must not be an “unreasonable one” 6. Unannounced entry when executing warrant allowed under exigent circumstances or threat of immediate destruction of evidence [Ker v. CA] A. The possibility of physical danger to police (i.e., suspect has a gun) may justify unannounced entry B. The fact that police do not knock or announce before entry is a factor to be considered when evaluating the “reasonableness” that the 4th A. requires [Wilson v. AR] i. Disposable nature of drugs justifies reasonable suspicion [Richards v. WI], and knock and announce 15–20 second wait before forcible entry satisfies 4th A. [U.S. v. Banks] ii. Includes reasonable suspicion of danger [U.S. v. Ramirez] iii. Warrantless entry justified when officers have objective basis that an emergency exists (i.e., loud altercation and prevention of continued violence) [Brigham City, UT v. Stuart; see also MI v. Fisher] 7. Search of other persons on premises: Cannot search persons unrelated to authorized scope of search [Ybarra v. IL] A. Must have probable cause particular to that person to search bystander or probable cause to believe he/she has items on his/her person named in the warrant; or B. Must have reasonable suspicion for a Terry frisk (belief that person is armed, etc.); or C. Must have probable cause to arrest a bystander on premises, and then police may conduct a search incident to arrest i. Probable cause to arrest front-seat passenger upheld [MD v. Pringle] 8. Plain view: Seizure of unnamed items allows police to make warrantless seizure of evidence seen in “plain view” while on premises for lawful purpose 9. Body searches: Must be reasonable whether or not a warrant is issued (e.g., stomach pumping, taking of blood, surgery) A. Reasonableness determined by balancing test: “The individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure” [Winston v. Lee] i. Two-hour surgery to remove bullet held substantial intrusion; society’s need for evidence is not compelling [Winston v. Lee] ii. Taking of blood from DUI suspect is not unreasonable [Schmerber v. CA] • ARREST WARRANTS 1. Generally, not required for felony arrest in public place as long as probable cause exists [U.S. v. Watson] A. Probable cause for arrest is slightly different than for search (see Reasonableness) B. Warrantless arrest for misdemeanor is constitutional [Atwater v. City of Lago Vista] 2. Generally, police may not enter to make warrantless arrest in private home if there are no exigent circumstances [Payton v. NY; see also Kirk v. LA] and may not be accompanied by members of the media [Wilson v. Layne; see also Hanlon v. Berger] A. If there are exigent circumstances and crime is a serious one, no warrant necessary (i.e., destruction of evidence, hot pursuit) B. When crime is nonserious, circumstances are generally not exigent, notwithstanding destruction of evidence or hot pursuit

• EXCEPTIONS TO SEARCH WARRANT

i. Look for control issues; roommate cannot consent to C. If check provides reasonable suspicion or probable search area he/she is forbidden in cause, searches and seizures are permitted 1. Search incident to arrest ii. Consenting and objecting co-occupants: Rights • AD HOC BALANCING A. Requirements: of present and objecting occupant wins; no valid 1. Permits full search for evidence without warrant so i. Person must be arrested, consent; search without warrant violates 4th A. long as search is “reasonable” ii. Search must be reasonably contemporaneous with [GA v. Randolph] 2. Distinguished from administrative search arrest, and iii. Hotel clerk cannot consent to search of hotel room A. Not part of limited regulatory scheme iii. Search not to exceed body and “grab area” (area iv. Landlord may not consent to search of tenant’s room, 3. Distinguished from traditional warrant exceptions must be within suspect’s “immediate control”) even if right to enter to clean A. Probable cause not required [Chimel v. CA] v. Owner’s consent generally binding for nonpaying B. Not based on asserted exigency B. Reasons: guest, but guest may not consent to search of owner’s C. Applies to class of cases, not just one at issue i. Officer’s safety (weapons may be in reach) ii. Prevents destruction of evidence property except for areas where guest has access rights D. Permits full search (not lesser intrusion, such as Terry iii. Lesser expectation of privacy after arrest • TERRY STOP: WARRANTLESS BRIEF frisk) C. NOTE: With reasonable suspicion that dangerous DETENTION & “STOP & FRISK” E. Not based on consent or elimination of privacy persons are on premises, cursory “protective sweep” 1. Police may seize person briefly without probable cause expectation can be made [MD v. Buie] as long as there is reasonable suspicion of criminal 4. Doctrine 2. Automobile search incident to arrest: Entire pasactivity [Terry v. OH] A. Effect: When ad hoc balancing is held to apply to senger compartment and contents of any containers A. Stop must be reasonably brief under circumstances class of searches, neither warrant nor probable cause may be searched when custodial arrest made of occui. Detention lasting 20 minutes found to be reasonable is required pant [NY v. Belton; see also Thornton v. U.S.; limited in one case [U.S. v. Sharpe] B. Search must be reasonable at its inception and in scope by AZ v. Gant] ii. Must be “on the street”; bringing to police station 5. Relevant factors indicating likely application A. Trunk not included, only areas accessible without requires probable cause [Dunaway v. NY] A. Search performed by government officials who are not exiting car iii. Reasonable suspicion may arise when suspect flees at law enforcement officers B. Must have probable cause for the original arrest to do sight of police [IL v. Wardlow] B. Government can articulate an important governmensearch incident to arrest B. May not be seizure at all; seizure only when reasontal interest other than interest in crime control C. Do not confuse with automobile exception for exigency able person would believe he/she was not free to leave C. Interest would be frustrated by requiring a warrant 3. Exigent circumstances: No warrant required when prob[U.S. v. Mendenhall] and probable cause able cause or actual emergency exists [Brigham City, UT C. Police may frisk during Terry stop if there is reason- 6. Applications v. Stuart; see also MI v. Fisher] and the conduct of the able belief suspect is armed A. Government offices searched by workplace supervipolice prior to the exigency is reasonable [KY v. King] i. Limited to running hands over outside of clothing; if sors [O’Connor v. Ortega] A. Hot pursuit weapon felt, officer may retrieve it i. Was reasonable in scope and justified at its inception i. In pursuit of suspect, police may: ii. Search limited to weapons; items that could not be by reasonable suspicion of work-related misconduct (a) Enter premises to search for him/her without a weapons (i.e., contraband) may not be examined or work-related non-investigatory need warrant, and unless the officer already has probable cause to B. School administration can search based on reasonable (b) Search for weapons that he/she might seize while believe object is a weapon suspicion of violation of school rule still at large [Warden v. Hayden] iii. “Plain touch”: Once frisk provides probable cause to i. Justified by the nature of the school environment in ii. In pursuit of evidence, police may: believe there is contraband or other evidence while loco parentis responsibility (a) Enter without a warrant to prevent destruction of within a narrow weapons frisk, officer may expand the ii. Search cannot be overly intrusive in light of age, sex evidence under the exigent circumstances excepsearch or seizure to the evidence [MN v. Dickerson] of the student, and nature of the infraction tion, provided police do not create the exigency by iv. Officer must have reasonable belief suspect may be iii. EX: Reasonable to search student’s purse for illegal engaging or threatening to engage in conduct that armed [Ybarra v. IL]; a reasonable belief that suspect drugs [NJ v. T.L.O.] violates 4th A. [KY v. King] has contraband or other evidence is not enough for iv. EX: Unreasonable to strip-search student for nonpre4. Automobile exception: Entire car may be searched the initial frisk, and an unreliable or uncorroborated scription pain reliever, even when possession of the without a warrant if probable cause exists and exigency anonymous tip does not justify stop and frisk [FL v. medicine violates school rule [Safford Unified Sch. created by car’s mobility [Carroll v. U.S.], including J.L.; AL v. White] Dist. v. Redding] personal belongings of passengers [WY v. Houghton] D. Terry stop of car: If police reasonably believe suspect v. Random drug testing of student athletes is perA. Includes luggage and all places that “could possibly may be armed, a brief seizure for investigation and missible, as there exists a lesser privacy expectacontain the object of the search” [U.S. v. Ross] weapons search of passenger compartment of car may tion [Vernonia Sch. Dist. v. Acton], which has B. Contemporaneousness not required; if driver arrested, be OK been extended to nonathletes [Bd. of Educ. of car may be searched at station if probable cause exists i. Reasonable belief that suspect is dangerous and can Pottawatomie Cnty. v. Earls] [Chambers v. Maroney], and car may be seized from have immediate control of weapons in car, and (a) Results are not shared with law enforcement, and public place with probable cause to believe that car is ii. The search is confined to passenger compartment (b) Testing conducted in unintrusive manner (i.e., forfeitable contraband [FL v. White] where weapons might be placed or hidden urine test) C. Includes mobile homes: Reduced expectation of (a) Cannot search trunk without probable cause C. Workplace drug testing privacy due to mobility and use as a “licensed motor (b) Plain view while performing search; if police i. “Reasonableness” is not always individual reasonvehicle” [CA v. Carney] discover contraband or evidence of crime where able suspicion D. Contrast with search incident to arrest where only weapon might have been, evidence may be seized (a) Drug testing of political candidate is not reasonpassenger compartment and any containers therein may [MI v. Long] able [Chandler v. Miller] be searched and must be contemporaneous with arrest iii. Includes driver and passengers [MD v. Wilson] ii. Applications 5. Inventory searches of cars: Police can conduct warE. Passenger seized during traffic stop may challenge the (a) Safety-sensitive occupation following particularly rantless search of car legally impounded (e.g., no probconstitutionality of the stop [Brendlin v. CA] defined occurrences (i.e., accidents, safety rule violaable cause needed and reasonable if standard for cars • REASONABLENESS OF SEIZURES tions, or reasonable suspicion that employee under impounded for illegal parking) 1. Arrest requires probable cause (sometimes warrant) the influence) [Skinner v. Ry. Labor Execs. Ass’n] A. Vehicle must be lawfully impounded 2. Terry seizures require reasonable suspicion (b) Preemployment test for DEA drug interdiction B. Police decisions for inventory searches must be on stan- 3. Seizure of property (moveable chattel) for duration officers and employees carrying firearms [Nat’l dard basis (cannot be discretionary) [SD v. Opperman] longer than allowed by Terry requires probable cause Treasury Emps. Union v. Von Raab] C. Scope but no warrant • ADMINISTRATIVE SEARCHES i. As long as it is standard inventory policy, closed con- 4. Vehicle checkpoints: Seizures tainers in cars can even be searched [CO v. Bertine] A. Limited nature of seizure and reduced expectation of 1. Warrant required in most cases A. EX: Housing inspections, code inspections ii. Includes cars stolen and recovered and impounded privacy in vehicles B. Exceptions: cars when owner is arrested on entirely non-vehicleB. Checkpoint specifically to detect narcotics violates i. As condition of receiving certain government benrelated charges 4th A. [IN v. Edmond], but checkpoint to obtain efits [Wyman v. James] 6. Consent searches: Police do not need a warrant or information from public upheld [IL v. Lidster] ii. Heavily regulated industries probable cause if they get consent 5. Brief seizure: Limited purpose (a) Licensed liquor sellers [Colonnade v. U.S.] A. Waiver need only be voluntary; not required to be A. License/registration check (b) Licensed gun dealers [U.S. v. Biswell] both knowing and voluntary B. DUI checkpoint (c) Mines [Donovan v. Dewey] B. Cannot be product of duress or coercion, express or C. No suspicion required (d) Three-part test: implied D. Must stop all vehicles or every tenth or similar (i) Government interest must be substantial C. Police do not have to advise regarding right to refuse i. Key is that uniformity eliminates officer discretion to (ii) Search must be necessary to regulatory structure consent [OH v. Robinette] single out individuals for scrutiny (iii) Regulatory structure must be clear as to scope D. Person must have actual authority or reasonably appear 6. Substitute for suspicion of authorized search and adequately limit to have authority to consent (i.e., “apparent authority”) A. Seizure must be very brief and limited in scope officer discretion E. Search must be within scope of consent B. No search of person or vehicle permitted (e) State-regulated junkyards [NY v. Burger] F. EX: Scope of consent to search vehicle may not C. Non-search investigative techniques permitted (e.g., 2. Probable cause said to be required, but standard not automatically extend to closed containers within the drug-sniffing dog at checkpoint) the same as in criminal cases vehicle [ME v. Sargent] 7. Boats 7. Third-party consent A. Brief stop of boats to check documents permitted by 3. Firefighting A. Initial entry requires no warrant; exigent circumA. “Assumption of the risk”: Co-inhabitants assume the analogy to auto checkpoints stances to fight fire risk that one of them may permit search of common B. Boats can be stopped at random because it is impossible i. Includes reasonable time to investigate cause area [U.S. v. Matlock] to set up “checkpoint” 4

Warrant Requirement of the 4th A. (continued )

B. Subsequent entries for investigation require administrative warrant C. Once probable cause is found indicating arson, investigation is criminal rather than administrative and regular warrant with Gates probable cause is needed

• BORDER SEARCHES

1. Both citizens and noncitizens have no 4th A. rights at border or its functional equivalent [Almeida-Sanchez v. U.S.] 2. Part of national sovereignty; may be conducted even if no-suspicion vehicle has illegal aliens or objects

A. Extend only to baggage and vehicle searches and personal searches that are not unduly intrusive i. For more intrusive searches, officers need stronger showing of reason to believe suspect is concealing smuggled goods ii. Removal and disassembly of gas tank upheld [U.S. v. Flores-Montano] 3. Roving patrols: Inside U.S. border, officer may stop a car for questioning of occupants if the officer reasonably suspects an immigration violation A. There must be a “particularized and objective” basis

for suspecting the driver or passenger has committed an immigration violation [U.S. v. Cortez] i. Mexican appearance of the occupants alone does not create reasonable suspicion [U.S. v. Brignoni-Ponce] B. Roving patrol may only conduct warrantless search with an exception to warrant requirement (i.e., consent or “automobile exception” needs probable cause) 4. Fixed checkpoints: Automobiles may be stopped for questioning of occupants even without reasonable suspicion of immigration violation, but must have probable cause or consent for search [U.S. v. Martinez-Fuerte]

JUDICIAL DOCTRINES A. Evidence admitted if shown by “preponderance of the evidence” that police would have discovered it anyway without acting unconstitutionally [Nix v. Williams] i. EX: Christian burial case in which police could show a search party would have found the victim’s body anyway without unconstitutional concession 3. Attenuation doctrine A. Evidence obtained through constitutional violation where connection has been so “attenuated” as to purge the taint i. EX: Defendant released on own recognizance after illegal arrest but returned days later to make confession; taint purged [Wong Sun] B. Case-by-case basis factors (where defendant is in custody and making statements): i. Temporal proximity between illegal seizure and statement ii. Presence of intervening factors (giving Miranda warnings) iii. Flagrancy of illegality 4. Limitations on the exclusionary rule A. Not applicable to grand juries i. A grand jury witness may not refuse to answer questions because they are based on illegal evidence [U.S. v. Calandra] B. Not applicable to civil proceedings C. Not applicable to parole revocation hearings [PA v. Scott] D. Not applicable to evidence seized in violation of the “knock and announce” rule, when search of a home was otherwise supported by a valid search warrant, because “knock and announce” rule does not protect an interest in avoiding search and seizure under a warrant [Hudson v. MI] 5. Good-faith exception A. Exclusionary rule does not apply when police act in good-faith reliance on existing statutory law or ordinance (even if law is declared unconstitutional or changed by court decision [IL v. Krull], on case law later changed by another judicial opinion [U.S. v. Peltier], or on a defective search warrant [U.S. v. Leon]) B. Negligent police mistakes, if isolated and not systematic errors or reckless disregard, still qualify as good faith [Herring v. U.S.] C. Searches conducted in objectively reasonable reliance on binding appellate precedent qualify as good faith and not subject to exclusion [Davis v. U.S. (2011)] i. Exceptions: Where officers will not have reasonable grounds to believe warrant was properly issued and so the exclusionary rule will still apply: (a) Affidavit on which warrant is based is so lacking in probable cause that no reasonable officer would rely on it (b) The magistrate has “wholly abandoned his judicial role” (c) The warrant is so deficient on its face that the officers executing it cannot presume it valid (d) Officer who sought warrant knows that the information is false or recklessly disregards its truth or falsity 6. Impeaching testifying defendant exception A. Defendant’s statements obtained in violation of 5th A. Miranda or 6th A. Massiah can be used to impeach defendant if he/she testifies at trial [Harris v. NY; KS v. Ventris] B. Coerced/involuntary confessions obtained in violation of Due Process cannot be used for any purpose or to impeach defendant if he/she testifies [Spano v. NY] C. Cannot impeach other defense witnesses with statements obtained in violation of Miranda [James v. IL] 7. Physical evidence gained from Miranda violations exception A. EX: Failure to give a suspect the required Miranda warnings does not mandate suppression of the physical fruits of suspect’s “unwarned but voluntary statements” (e.g., a firearm) [U.S. v. Patane]

EXCLUSIONARY RULE

Evidence obtained by violating defendant’s constitutional rights may not be introduced at trial to prove defendant’s guilt; generally, unconstitutionally obtained evidence must be excluded 1. Applies to 4th, 5th, or 6th A. right violations 2. Applicable to federal cases [Weeks v. U.S.] 3. Applicable to states [Mapp v. OH]

• STANDING

1. Defendant must have standing to trigger exclusionary rule A. Requires defendant’s individual constitutional right violated by government B. Violation of others’ rights during the criminal investigation will not give defendant standing to exclude evidence, unless defendant’s individual right also violated i. EX: Evidence against codefendant can be admitted against defendant even though evidence was obtained through illegal wiretap of codefendant’s conversation; defendant had no right to privacy in that conversation, thus there was no individual 4th A. violation of his/her constitutional rights [Alderman v. U.S.] ii. EX: Defendant must show search or seizure violated his/her individual “legitimate expectation of privacy” [Rakas v. IL] iii. EX: Overnight guest has 4th A. rights and thus has standing to assert exclusionary rule for illegal searches and seizures [MN v. Olson] iv. EX: Coconspirator standing rejected; merely having relationship to person having standing is not enough to have standing [U.S. v. Padilla]

• RATIONALE BEHIND EXCLUSIONARY RULE

1. Deterrence: Primary reason for doctrine is to deter the police from violating citizen’s constitutional rights A. Take away any benefit received from unlawful search, interrogation, etc., by excluding its use at trial B. When deterrence would not be achieved by excluding illegally obtained evidence, courts have carved out exceptions to exclusion: i. Independent source ii. Inevitable discovery iii. Attenuation iv. Good faith C. Exclusionary rule applies to constitutional errors by police and prosecution that could gain them an advantage in the case if not excluded; thus exclusionary rule does not apply to errors by court employees or others [AZ v. Evans] D. Exclusionary rule does not apply to police officer’s state law violations that would otherwise be constitutional under federal law; in order for the state to fully provide additional protection of its citizens, the heightened state law must also provide for the exclusionary remedy for the evidence obtained in violation of the state law; defendant is still entitled to civil tort remedy for officer’s violation of state law, but suppression of evidence under the federal exclusionary rule is not required [VA v. Moore]

FRUIT OF THE POISONOUS TREE

Doctrine that requires that illegally obtained evidence and its derivative evidence must be excluded from trial unless illegal taint can be purged by a lawful source [Wong Sun v. U.S.]

• EXCEPTIONS TO THE EXCLUSIONARY RULE

1. Independent source doctrine A. Evidence brought in if obtained from source independent of original illegality [Murray v. U.S.] 2. Inevitable discovery doctrine

THE 5TH A.: CONFESSIONS DUE PROCESS • INVOLUNTARY CONFESSION

B. EX: 8-hour, middle-of-the-night interrogation by police/longtime friend of suspect using manipulating emotional tactics held involuntary: “Considering all the facts, [suspect’s] will was overborne by official pressure, fatigue, and sympathy falsely aroused” [Spano v. NY]

1. Violates Due Process and cannot be used for any purpose [Spano v. NY] 2. Coercion must come from government A. Government coercion missing where suspect’s confession motivated by own psychotic state and response to inner • MIRANDA RIGHTS “voices”; no violation of Due Process [CO v. Connelly] 1. Protection based on 5th A. right not to incriminate oneself • VOLUNTARINESS 2. Miranda rights triggered by: 1. Totality of the circumstances used: A. Custody A. Age B. Interrogation B. Education 3. Custodial interrogations require Miranda warnings to C. Mental ability D. Intoxication be given: E. Setting A. Right to remain silent F. Duration B. Anything said can be used against suspect in court 2. Confessions that violate Due Process: C. Right to presence of attorney A. EX: 36-hour, nonstop incommunicado interrogation D. Attorney will be provided without cost if suspect deemed “inherently coercive” [Ashcraft v. TN] cannot afford one 5

i. The phrasing of the warnings can vary so long as the words reasonably convey the suspect’s rights under Miranda [FL v. Powell] ii. Rationale: The custodial interrogation setting is inherently coercive as to require informing a suspect, at that point, of his/her right against self-incrimination and right to have counsel present during questioning; if a suspect decides to speak, it should be based on his/her free-will choice (knowing he/ she could remain silent or have counsel present to assist), not based on the coercive nature of the policedominated environment (a) Individual may waive rights, but waiver must be knowing, intelligent, and voluntary [NC v. Butler] (b) Suspect may talk without attorney present, provided valid waiver is obtained (c) Miranda warnings must be given for waiver to be valid

The 5th A.: Confessions (continued )

(d) Burden is on prosecution to show waiver; presumption ii. However, when an inmate is questioned in prison about 2. Ambiguous request for counsel will not invoke Miranda events occurring outside the prison, he/she is per se “inagainst waiver protections and does not count [Davis v. U.S. (1994)] custody” for the purposes of Miranda [Howes v. Fields]✔ 3. Invocation of right to silence must be clear and unambig(e) Waiver need not be in writing; can be oral, but silence • INTERROGATION is never a waiver; could have been intimidated uous [Berghuis v. Thompkins] 1. Words or actions on part of police that police should know are 4. Invocation of right to counsel and right to remain silent (f) Totality of the circumstances will be considered reasonably likely to elicit incriminating response [RI v. Innis] (g) Defendant need not know the exact crime he/she is does not last forever; must be reasserted after 14 days to be 2. Volunteered statements not protected by Miranda suspected of to waive his/her rights [CO v. Spring] effective [MD v. Shatzer] 3. Public safety exception [NY v. Quarles] • CUSTODY • LIMITATIONS A. Miranda warnings not required when police ask ques- 1. Miranda requirements do not apply to witness testi1. Arrest or functional equivalent of arrest defines custody for tions reasonably prompted by public safety Miranda purposes fying before a grand jury A. Terry “stop and frisk” temporary detention is not custody 4. Miranda only protects suspect’s testimonial communications A. A witness summoned before a grand jury may A. Can be asked to give fingerprints, handwriting sample, for Miranda rule refuse to answer (after being sworn) on the grounds voice sample, and blood test and to appear in lineup B. Routine traffic stop where citation given is not custody it may incriminate him/her [Schmerber v. CA] for Miranda rule • EFFECT OF MIRANDA VIOLATION 5. Miranda warnings only required when suspect is speaking i. Driver believes he/she is free after a ticket is issued 1. Evidence obtained in violation of Miranda is inadmissible to a known government agent [Berkemer v. McCarty] substantively at trial as part of prosecution’s case in chief A. Confessions made to undercover agents, even in custodial 2. Objective test: Considering the circumstances surA. Deliberate police tactics of questioning first and setting and questioning by undercover agent [IL v. Perkins] rounding the interrogation, whether a reasonable person Mirandizing after is an unconstitutional practice, and B. Rationale: Not an inherently coercive environment if in suspect’s position would believe he/she is in custody mid-interrogation Miranda warning invalidates previous suspect doesn’t know he/she is speaking to the police; [Yarborough v. Alvarado], including the age of a juvenile unwarned confession [MO v. Seibert]; however, a techniMiranda warnings unnecessary in this setting suspect, if the age is known or reasonably apparent to the cal omission of Miranda warnings during an otherwise 6. Miranda rights may be exercised at any time during quesofficer [J.D.B. v. NC] voluntary confession might not taint all future confessions tioning; two different rights: A. Issue of “custody” is mixed question of law and fact B. Subsequent Mirandized interrogations are analyzed for A. Not to incriminate self/to remain silent; not required to [Thompson v. Keohane] their voluntariness and lack of coercion and, if found to respond to questioning 3. Officers’ subjective undisclosed opinion does not bear upon be voluntary, can be admissible [OR v. Elstad] B. To have lawyer present during questioning question of custody [Stansbury v. CA] C. Also, if a subsequent Mirandized interrogation follows an 7. When silence invoked, questioning must stop for signifi4. Place of interrogation may impact custody status unwarned interrogation, the subsequent interrogation is valid cant period of time to “scrupulously honor” suspect’s right A. Police station and patrol car: provided it is distinctly separate and not part of a continuum to silence; later re-warning OK and suspect can waive i. More likely custodial, but of the first unwarned interrogation [Bobby v. Dixon]✔ [MI v. Mosley] ii. Not custodial if individual voluntarily goes to police • INVOCATION OF RIGHTS: “BRIGHT LINE” 2. Physical evidence found as a result of a suspect’s un-Miranstation [OR v. Mathiason; Yarborough v. Alvarado] dized but voluntary statement is admissible [U.S v. Patane] 1. Once suspect asserts right to counsel, police may not quesB. Prison: tion him/her again without counsel present, unless suspect 3. Prosecution may use a confession obtained in violation of i. A prison inmate is not automatically “in-custody” for Miranda to impeach defendant’s testimony if he/she takes initiates further communication, then waives after reMiranda purposes [MD v. Shatzer] warning [Edwards v. AZ] the stand at trial [Harris v. NY]

THE 6TH A.: RIGHT TO COUNSEL 1. The 6th A. provides the defendant counsel at felony trials or misdemeanor trials where actual jail time is imposed [Gideon v. Wainwright; Scott v. IL] 2. The 6th A. right is made applicable to the states by the 14th A. [Gideon v. Wainwright] 3. In order to ensure meaningful and effective representation at trial, the 6th A. protects the defendant at all critical stages pretrial [Massiah v. U.S.] 4. The 6th A. right to counsel attaches once formal charges/ proceedings have begun (e.g., formal charge, arraignment, indictment, information, preliminary hearing) 5. The 6th A. right to counsel is “offense-specific” and only protects the defendant regarding the offense for which formal proceedings have begun and not uncharged related crimes [TX v. Cobb] A. Determine “same offense” by applying the same test used for double jeopardy analysis; that is, whether each offense requires proof of a fact that the other does not [Blockburger v. U.S.] B. Absolute right to counsel at any pretrial confrontation after formal adversarial criminal prosecution starts [U.S. v. Wade] i. Lineups and identifications (a) Any arranged identification procedure without presence of counsel must be excluded at trial (unless waived) (b) Right to counsel does not apply to physical lineups before formal proceedings are initiated [Kirby v. IL] C. Stages at which right to counsel applies: i. Post-charge physical lineups ii. Post-indictment interrogation by known and/or undercover government agents, whether custodial or not [Massiah v. U.S.] (a) Police cannot use undercover agents to “deliberately elicit” incriminating statements from formally charged defendant regarding that “specific offense” [U.S. v. Henry; ME v. Moulton] (b) An undercover agent who only passively listens to statements made by formally charged defendant and conveys it to police does not violate 6th A. [Kuhlmann v. Wilson]

iii. Arraignment iv. Misdemeanor trials when imprisonment is actually imposed v. Juvenile delinquency proceedings in which institutional commitment is a possibility [In re Gault] vi. Felony trials [Gideon v. Wainwright] vii. Guilty pleas and sentencing (a) Incorrect advice regarding deportation as a collateral consequence of one’s guilty plea falls within the 6th A. right to competent counsel protection [Padilla v. KY] viii. Appeals as a matter of right [Douglas v. CA; see also Roe v. Ortega], but no right to self-representation on appeal [Martinez v. Court of Appeal of CA]; additionally, counsel must file brief stating reasons where appeal may be frivolous [Smith v. Robbins] ix. Right to paid counsel of choice admitted pro hac vice [U.S. v. Gonzalez-Lopez] x. Defense counsel’s failure to present mitigating evidence that has a reasonable probability to change the sentence could constitute ineffective assistance of counsel in capital cases [Porter v. McCollum; Wong v. Belmontes] xi. However, the ABA guidelines on effective assistance are not binding upon courts considering 6th A. claims of ineffective assistance [Bobby v. Van Hook] D. Stages at which right to counsel does not apply: i. Photo IDs: Witness viewing photo or video of accused for identification purposes [U.S. v. Ash], but the way photo ID is done can violate Due Process ii. Determine Due Process compliance [Neil v. Biggers] iii. Taking of handwriting, fingerprints, voice exemplars [Gilbert v. CA; U.S. v. Gallo-Moreno (7th Cir.)], or blood samples [Schmerber v. CA] iv. Discretionary appeals [Ross v. Moffitt] v. Post-conviction proceeding (e.g., habeas corpus) [PA v. Finley] E. Due Process violated when identification is: i. Unduly or unnecessarily suggestive

ii. Substantial likelihood of irreparable misidentification [Perry v. NH]✔ iii. Must weigh any undue suggestiveness against other factors indicating independent reliability of identification [Mason v. Brathwaite (1977)] iv. Independent reliability of identification is based on totality of the circumstances and the Biggers factors [Neil v. Biggers]: (a) Opportunity to view suspect at time of crime (b) Witness’s degree of attention (c) Accuracy of witness’s prior description of suspect (d) Level of certainty of witness (e) Length of time between crime and identification v. Determine whether lineup is unduly suggestive or Due Process compliant [Neil v. Biggers]: (a) Size: Defendant’s photo may have been largest (b) Color: Black and white, except for defendant’s photo (c) Placement: Defendant’s photo most prominent (d) Race, sex, age, etc., of others vi. Although one-person show-ups are disfavored, based on the totality of the circumstances, they can still pass Due Process (a) Immediate need due to dying witness mitigated oneperson lineup [Stovall v. Denno] F. The 6th A. right to self-representation from Faretta v. CA does not extend a right of law library access to a pro se defendant [Kane v. Garcia Espitia] G. The 6th A. permits a state to limit a defendant’s right to self-representation and insist on court-appointed counsel when the defendant is mentally competent to stand trial but incompetent to represent him/herself [IN v. Edwards] H. The 6th A. right to counsel guarantees effective assistance of counsel [Strickland v. WA]; representation is constitutionally ineffective if: i. Deficient representation: Whether counsel’s errors fell below objective standard of reasonableness, and ii. Prejudice: Counsel’s performance is prejudicial to the defense

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