FOURTH
AMENDMENT
·
IF
o
The government,
§ Searches a person or a
thing or
§ Seizes a person or a
thing,
·
THEN,
o
There must be a warrant
§ Particularly described
§ Supported
by probable cause
§ Unless
there is an exception.
Government
·
Evidence obtained by
non-government actors is admissible no matter how unlawfully it was obtained.
o
UNLESS he is acting as an agent
or instrument of a government agent.
Search
·
A search occurs where the
government invades a person’s reasonable
expectation of privacy (REP)
o
Olmstead
(overruled
by Katz)
§ A
search does not occur unless there is physical penetration or trespass onto
private property.
o
Katz
§ Gov’t
tapped outside of a public phone booth w/o a warrant.
§ It
was a search b/c Defendant’s REP violated.
·
REP 2-part test requirements
o
Subjective REP
§ What
did Defendant do to indicate expectation of privacy?
o
Objective REP
§ Does
society recognize a REP in the place/property?
·
No objectively REP in open fields
o
Oliver
§ Subjectively
REP (locked gates, “no trespassing” signs).
§ But
no objectively REP in what is knowingly exposed to the public.
·
Open fields are exposed to public
view from roadside and air.
·
Open field v. curtilage
o
Dunn, 4 part factors
test for finding that the barn was outside the curtilage
§ How
close is it to the home?
·
The
barn was far away; 50 yards away from the home.
§ Is
it within an enclosure surrounding the home?
·
No,
but entire property surrounded by woods and intermittent livestock corrals.
§ What’s
the nature of its use (associated with intimate activities of the home)?
·
Cop
knew there were drugs in the barn b/c of tracker.
§ Is
there a subjective expectation of privacy?
·
No
signs posted, no locked gates.
·
There is an assumed objectively REP in unexposed curtilage.
o
The area immediately surrounding
and intimately associated with the home.
o
Ciraolo
§ D
had a subjectively REP in the curtilage, but “what is knowingly exposed to
public view, even from home or curtilage, is not protected.”
§ The
aerial surveillance was nonintrusive and conducted from navigable airspace.
o
Riley
§ Plurality
opinion: aerial surveillance of curtilage is not a search if it is conducted
from navigable airspace, nonintrusive, no interference with the
use of the property (dust, noise, wind), and no peeking into intimate activities of the home.
o
Kyllo
§ Use
of a thermal imager on the outside of the home is a search (objectively REP
against thermal imager searches).
§ Thermal
imager is not in general public use (like planes?).
§ Unlike
aerial surveillance, the imager was able to peer into the intimate activities
taking place inside the home that would not have been knowable but for
the imager.
o
CA
v. Greenwood
§ Investigation
of curbside trash is not a search; no REP in items placed on public streets.
§ The
trash is open to snoops and the general public; cops don’t have to ignore what
is open to the general public.
·
Public behavior
o
Knotts
(overruled
by Jones).
§ Use
of a tracking device on a car is not a search.
§ There
is no REP in your movements in public places.
o
C.f.,
U.S. v. Jones (2012)
§ A
tracking device on a car is a search.
§ Physical
intrusion onto private property is a search.
o
White
§ Wired
informant’s recorded conversations with Defendant were not the result of a
search.
o
Smith
v. MD
§ Cops
requested phone company to install a pen register at its office to record the
phone numbers that Defendant called.
§ The
register revealed that Defendant called victim making obscene calls.
§ The
pen register was not a search b/c there was no REP in the non-content information
of outgoing calls, which the phone company had access to anyway.
·
Dog sniffs
o
Place
§ Dog
alerted on Defendant’s luggage, cops got a warrant.
§ A
dog sniff is not a search.
§ Nonintrusive
(luggage doesn’t have to be opened), info revealed is limited (nothing intimate
is revealed, only the presence of drugs).
o
IL
v. Caballes
§ There
is no standard required for performing a dog sniff at a traffic stop.
§ A
dog sniff at a traffic stop is not a search because dogs only alert to the
presence of drugs and there is no REP in possession of drugs.
Seizure
·
Seizure of property
o
An infringement of a meaningful
possessory interest.
·
Rules for arrests:
o
Need a warrant to arrest someone
in their home [Payton].
o
No warrant when there’s Probable
Cause (PC) of a crime
committed in cop’s presence [Watson].
o
Need a warrant when misdemeanor
committed outside cop’s presence [?].
o
If Probable Cause that Defendant committed
even a minor offense in cop’s presence, cop can arrest [Atwater]
o
Arrests require PC; stops require
RS; consensual encounters require nothing.
·
Mendenhall
o
D was approached by cop. Cop
asked Q’s, asked Defendant to come to office, asked Defendant if he could
search.
o
D says it was an unreasonable
seizure.
o
SUPREME COURT: This was not a seizure, it was a consensual
encounter. Seizure is when, by force or show of authority, cop has restrained one’s
liberty.
·
FL
v. Bostick
o
Seizure definition revised:
Whether one would feel free to decline cop’s requests or otherwise terminate
the encounter.
o
Drayton
§ No
seizure when cop boarded bus and asked to search luggage; reasonable person
would feel free to decline.
·
CA
v. Hodari
o
Seizure definition revised again:
Seizure occurs when one is actually physically restrained. This is a subjective
standard (not a reasonable person standard). A show of authority is not enough.
·
Brendlin
o
Driver and passenger(s) are seized
during a traffic stop.
·
Stop and Frisk
o
Terry
v. OH
§ If
cop has reasonable suspicion that Defendant has committed, is committing, or is
about to commit a crime, he may stop the D.
§ THEN,
if cop has a reasonable belief that Defendant is armed, he may frisk for weapons only.
§ There
is no automatic right to frisk,
there must be particular reasons for believing Defendant is armed.
§ Seizure
of non-weapon contraband resulting from a frisk can only occur if it
·
Felt like a weapon; or
·
Was immediately apparent as
drugs under Plain Touch (no physical manipulation to determine whether or not
it’s contraband).
·
Terry progeny –
Reasonable Suspicion to stop determined by ToC:
o
Car frisks
§ When
Reasonable Suspicion to stop and belief that Defendant is armed.
§ Can
search passenger compartment and closed containers FOR WEAPONs.
o
Arvizu
§ Driver
was not doing anything illegal, cop stopped him. Consensual search found Marijuana.
§ RS
req’d to conduct a traffic stop; reasonable suspicion determined by ToC.
§ Here,
the totality of the circumstances (time of day, odd behavior, raised knees)
gave cop reasonable suspicion to believe that Defendant was a drug smuggler.
o
Informant tips
§ AL v. White
·
Informant gave a very detailed
tip to cops, Defendant’s activity conformed to the tip; cops stopped Defendant’s
car and got consent to search.
·
SUPREME COURT: The tip and following surveillance was
sufficient to form RS.
§ FL v. J.L.
·
Generalized anonymous tip (i.e. black male in plaid
shirt) is not sufficient for RS.
o
IL
v. Wardlow
§ Flight
can be a factor in the ToC.
o
Profiling
§ Sokolow
·
Cops got a tip from ticket guy;
at airport, Defendant’s conduct fit a “drug courier profile.”
·
SUPREME COURT: ToC constitutes RS. Departmental profiling
training is a factor in ToC.
§ AZ v. U.S.
o
Electronic Surveillance
o
Hiibel
§ Cops
can ask for ID
Probable Cause
·
Required to obtain a search
warrant and/or arrest warrant.
·
Aguilar-Spinelli Probable Cause standard
(lowered by IL v. Gates)
o
Hearsay evidence is sufficient to
issue a warrant on PC, but specific facts are needed about the underlying
circumstances, the criminality, and why the info and informant are reliable.
·
IL
v. Gates
o
PC “floor” lowered to totality of the circumstances test
(states can still follow A-S standard).
§ Source
§ Amount
of detail
§ Corroboration
(by cops or others)
§ Cop’s
opinions
o
Here, the source was anonymous,
but it was detailed; DEA and Defendant’s conduct corroborated it.
·
MD
v. Pringle
o
Cop arrested all occupants of a car
after a lawful search revealed coke (all denied ownership).
o
D signed a confession, later
moved to suppress that cop had no Probable Cause to arrest him.
o
SUPREME COURT: Cop had Probable Cause to arrest; one of the
three had to be guilty.
·
Whren
o
Bright-line rule: cops can stop
cars for traffic violations whether or not the stop is pretextual.
o
Objective standard for PC.
·
AZ
v. Johnson
o
PC to stop a car gives cop a
right to search the person of all occupants.
Execution of the Warrant
·
Particularly described
o
A broadly worded warrant is an
u/c ticket to rummage through private property.
o
Andresen
§ Only
the fruits and instrumentalities of crime can be searched or seized.
o
Groh
§ Bright-line
rule: A warrant must particularly
describe the persons/things to be searched/seized.
§ Even
if the application for the warrant is correctly drafted, if the warrant is
mistakenly drafted, the search/seizure is u/c.
·
Knock-and-announce rule
Exceptions to Warrant Requirement
·
Search Incident to Lawful Arrest does not
require a warrant.
o
Chimel
§ Cops
can only search the person and the grab area of the arrestee (but
see Buie).
§ This
is mainly for police protection.
o
U.S.
v. Robinson
§ Cops
can do a full search of the person after a SILA; even containers on the person.
·
Hot Pursuit
o
Warden
v. Hayden
§ Cops
can enter and search a house without a warrant when there is a strong
indication (eyewitness evidence) that a dangerous suspect entered the house
after committing a violent crime. Cops can seize ALL evidence (weapon AND
clothes, etc.).
·
Protective Sweeps
o
MD
v. Buie
§ Cops
can do a protective sweep of an area if there is reasonable suspicion that officer safety is in danger because of a
hidden cohort.
§ No
warrant needed and any evidence found in plain view during the sweep is
admissible.
·
Automobile SILA
o
Must be contemporaneous w/
arrest.
o
o
Knowles
v. IA
§ There
must be an actual arrest for this exception to apply.
o
Unsecured v. Secured arrestees
w/o Probable Cause of evidence in the car
§ NY v. Belton
·
Cop stopped Defendant for
speeding, saw drug evidence, and lawfully arrested Defendant and ordered him
out of the car; Defendant was unsecured
but out of the car’s grab area.
·
Cop searched the inside of the
car and glove compartment.
·
SUPREME COURT: This search is OK, but can’t search
trunk.
§ AZ v. Gant
·
Cop lawfully arrested Defendant in
a yard away from Defendant’s parked car
for driving while suspended, put Defendant in the patrol car, then searched
Defendant’s car.
·
SUPREME COURT: The search was u/c b/c 1) there was no
officer safety issue b/c Defendant was secured in the patrol car (could not
have accessed the car to retrieve a weapon); 2) There could be no DWS evidence in
the car.
·
In Belton, Defendant was unsecured (there was officer safety issue)
and cop saw drug evidence.
o
If there is Probable Cause of
contraband or the fruits/instrumentalities of crime in the car, a full search
is allowed
·
Plain View
o
Coolidge
v. NH
§ Cops
can use all 5 senses to seize objects if there is Probable Cause to believe
that it is evidence.
§ Read^
o
Horton
v. CA
§ Discovery
of evidence in plain view does not have to be inadvertent.
§ If
cop is acting w/in boundaries of the warrant, he can purposely look for other
evidence in plain view; but he must stop
looking once he finds the specific evidence in the warrant.
o
Hicks
§ There
must be Probable Cause that the object is evidence of crime w/o any physical manipulation.
§ Cop
entered w/ warrant to search for guns, saw stereo, moved it to find a serial
number, radioed the serial number and found out it was stolen.
·
Plain Touch
o
MN
v. Dickerson
§ Terry stop and frisk for weapons for officer safety.
§ Cop
found no weapons but felt a bag w/ a lump, fondled it, formed the belief that it was drugs, and retrieved it.
§ The
Plain Touch doctrine exists, but only if the illegality of the non-weapon
contraband is immediately apparent without any fondling.
§ Cops
can frisk for weapons to protect officer safety, they do not have to ignore
their sense of touch during the frisk, but they can’t frisk for drugs.
·
Automobile
o
Exception applies when 1) SILA, supra; or 2) Probable Cause that illegal
object or proceeds/evidence of crime is in the car.
§ If
Probable Cause of criminal evidence in the car, can search passenger
compartment, closed containers, and trunk for evidence of that crime.
§ Cannot
search containers that could not possibly contain the evidence.
§ If
the evidence is qualified (a specific, unique piece of evidence), must stop
searching after its found.
o
Chambers
v. Maroney
§ The
search of the car does not have to take place contemporaneously with the
arrest.
§ As
long as there is PC, cop can seize and search later w/o a warrant.
o
CA
v. Carney
§ Cop
had Probable Cause that drugs were in the mobile home; entered w/o warrant and
searched.
§ Lower
REP for cars: Pervasive gov’t regulation, public roadways, and windows.
§ Also,
warrant requirement impractical; cars are mobile and can drive off w/ evidence.
o
Coolidge, supra
o
CA
v. Acevedo
§ Pre-Acevedo, cops could not search containers
in a car or the trunk w/o a warrant.
§ Cop
had Probable Cause that a bag in Defendant’s truck had MJ; stopped Defendant and
searched trunk (no arrest).
§ SUPREME
COURT: Automobile exception extends to
containers in car and trunk if there is
PC.
·
Inventory Searches
o
Opperman
§ Inventory
search of impounded car is OK if it is
part of a routine, absolute policy.
o
Lafayette
§ Inventory
search of an arrestee’s person and belongings as part of a routine policy
during booking is OK.
o
FL
v. Wells
§ Police
dept. had no policy concerning opening locked containers in inventory search.
§ Cop
forced open locked luggage during inventory search of Defendant’s car.
§ SUPREME
COURT: Search was u/c b/c no policy
existed. Must be a clear and non-discretionary policy.
·
Border Searches
o
No individualized suspicion
required.
o
Balance test: Gov’tal interest,
effectiveness of the search method, degree of intrusion.
o
U.S.
v. Flores-Montano
§ CBP
disassembles Defendant’s gas tank and finds MJ.
§ SUPREME
COURT: Search was OK, lower REP b/c 1)
car; and 2) at the border. There was no significant destruction of property and
a high gov’tal interest in border protection.
o
Ramsey
§ Only
reasonable suspicion of contraband is required to open incoming
international mail.
o
Montoya-Hernandez
§ Only
reasonable suspicion of criminality based on ToC is required for a non-routine
border search.
·
Checkpoints
o
No individualized suspicion,
random seizure of cars.
o
MI
v. Sitz
§ Sobriety
checkpoint was OK; it was a public
safety endeavor, not criminal
investigation.
§ Low
degree of intrusion (25 s.) high gov’tal interest (drunken driving rates).
o
Indy
v. Edmond
§ Sitz dealt with public
safety on the roads; here, Indy is doing criminal investigation without any
individualized suspicion; the drug checkpoints are u/c.
§ General crime control requires
individualized suspicion.
o
Lidster
§ Checkpoint
to find witnesses of a crime in the area was OK.
§ The
Q’s were not incriminating; looking for witnesses, not the D.
§ 3
prong test:
·
Degree of public concern;
·
Degree that the checkpoint
addressed the public concern; and
·
Minimal intrusion.
·
Consent
o
Bustamonte
§ No
Probable Cause req’d; but consent must be voluntary: objective (NOT subjective)
ToC test.
§ Gov’t
doesn’t have to show Defendant’s subjective knowledge that Defendant coulda
withheld consent.
·
Exigent Circumstances
CARS
·
Terry frisks
·
SILA automobile search
o Must
be contemporaneous w/ arrest
o Two
types
§ Unsecured
D
·
Can search passenger compartment and closed containers therein for OFFICER SAFETY.
·
Can search passenger compartment BUT NOT containers for evidence OF THE
CRIME Defendant WAS ARRESTED FOR.
§ Secured
D
·
Can search ONLY passenger compartment (NOT closed
containers) for evidence OF THE CRIME Defendant WAS ARRESTED FOR.
·
They must SEIZE containers and
get a WARRANT to search them.
o Policy:
Officer safety and protecting evidence OF THE CRIME Defendant
WAS ARRESTED FOR.
·
Automobile exception to warrant
requirement
o Can
occur whether or not there is an arrest; can occur at any time after an arrest
(allows expanded search rights)
o When:
§ PC
that contraband is located in the vehicle.
§ Can
search ALL AREAS of the vehicle where the evidence could possibly be.
§ Can
search the closed containers of driver AND passengers
§ MUST
STOP when evidence is found
o Policy:
Safeguarding evidence b/c it’s easy to lose (maneuverability of cars), lower
REP.
Exclusionary Rule
·
Advantages and disadvantages
o Hudson v. MI
§ Cop
didn’t knock and announce before executing the warrant
§ The
evidence is not excluded b/c the harm to society by excluding the evidence
outweighs the benefits of the rule.
§ Excluding
the evidence would encourage cops to wait longer than required, which risks
destruction of evidence.
§ Scalia:
Should be no exclusionary rule. Sec. 1983 is sufficient to deter unlawful
police conduct.
·
Standing to challenge a 4th
Amd. violation.
o Rakas v. IL
§ Only
car owners have standing to challenge the search of the car; D-passenger could
not challenge the illegal search of the car.
§ Passengers
can only challenge the search of themselves and their items/containers in the
car. But see Brendlin, infra.
o Brendlin
§ D-passenger
could challenge the traffic stop
because he was seized.
o MN v. Carter
§ No
REP for short-term guests in a home; thus, no standing.
§ D’s
presence in the home was like a commercial transaction taking place.
·
Exceptions
o Independent
Source
§ When
there is an u/c s/s BUT an alternate
lawful s/s independent of the u/c one
§ Murray v. U.S.
o Inevitable
Discovery
§ When
evidence would have been found inevitably;
state must prove by PE.
§ Nix v. Williams
o Attenuation
of Taint
§ When
the chain of causation between the illegal conduct and the conviction is
attenuated/broken, the exclusionary rule does not apply.
§ Wong Sun
·
Initial unlawful entry; several
days later, Defendant arrested and Mirandized. Defendant’s incriminating statements are admissible.
§ C.f., Brown v. IL
·
Time between unlawful
entry/arrest and Miranda was short (hours, not days); Defendant’s incriminating
statements are excluded.
o Good
Faith
§ When
cop executes a flawed warrant in good faith; rationale is that excluding the
evidence would not deter unlawful police conduct, harm to society outweighs
benefits.
§ U.S. v. Leon
·
Affidavit upon which magistrate
issued warrant did not establish PC; evidence from the search is not excluded.
§ However,
Good Faith exception does not apply to a deficient warrant for a s/s IF
·
Cop-affiant lied;
·
Magistrate abandoned all vestiges
of neutrality; OR
·
Warrant was so lacking in
Probable Cause that it would be unreasonable for a reasonable cop to rely on
and execute it.
o More?
INTERROGATIONS
and CONFESSIONS
·
Involves 14th Amd. DP,
5th Amd. self-incrimination privilege (RtRS), 6th Amd.
right to counsel.
14th Amendment
·
Brown
v. MS
o
An involuntary, coerced
confession violates DP.
o
Voluntariness is determined by
ToC test
§ Was
there coercive police conduct,
§ That
overbore the will of the accused?
·
AZ
v. Fulminante
o
Jailhouse informant offered
Defendant protection in exchange for info regarding the murder; Defendant confessed.
o
SUPREME COURT: The fear of physical violence prompted the
confession.
·
Spano
v. NY
o
D was subjectively vulnerable to
psychological police tactics.
o
D was subjected to 8 hours of
questioning and false sympathy for his friend.
·
Lynum
v. IL
o
Cops cannot make threats
of harsh treatment and promises of leniency.
§ Assurances
of divine salvation upon confession; Promises of mental health treatment in
exchange for a confession; Assurances of treatment in a "nice
hospital" (in which the defendant could have his personal belongings and
be visited by his girlfriend) in lieu of incarceration, in exchange for a
confession; Promises of more favorable treatment in the event of a confession; Misrepresentations
of legal principles, such as (a) suggesting that the defendant would have the
burden of convincing a judge and jury at trial that he was "perfectly
innocent" and had nothing to do with
·
Frazier
v. Cupp
o
Police can lie and misrepresent
in order to extract a confession.
§ Placement
of the defendant's vehicle at the crime scene; Physical evidence linked to the
victim found in the defendant's car; Discovery of the murder weapon; A claim
that the murder victim is still alive; Presence of the defendant's fingerprints
on the getaway car or at the crime scene; Positive identification of the defendant
by reliable witnesses; Discovery of a nonexistent witness.
·
CO
v. Connelly
o
The mental state of the Defendant
does not matter (but it does matter in sentencing).
o
D lacked volitional abilities when he confessed.
o
SUPREME COURT: The confession is admissible b/c there was no
police misconduct to coerce him!
Fifth Amendment
·
1960’s, Supreme Court moves
toward a two-step approach
o
Was the confession voluntary (DP
test)?
o
Did the interrogation comply with
other req’s (Miranda, right to counsel,
etc.)?
·
Miranda
o
Decided to bolster the 5th
Amendment right against self-incrimination; operates from a standpoint that
police interrogation is inherently coercive; includes warnings about counsel,
but only to protect the fundamental 5th Amd. right against
self-incrimination.
o
Miranda warnings MUST
be given BEFORE a
§ Custodial
·
When a reasonable person is
deprived of his freedom and would not feel free to leave.
·
Oregon
v. Mathiason
o
Cop asked Defendant to come to HQ; Defendant was never arrested; NOT custodial
·
Yarborough
v. Alvarado
o
Custody is an objective standard. Defendant’s age,
mental state, etc. is not considered when determining
whether he was free to leave.
§ Interrogation
·
Express questioning or its functional equivalent
·
Any words or actions that an
objectively reasonable cop knows or should know are
reasonably likely to elicit an incriminating response.
o
E.g., appealing to religion when
suspect is clearly religious.
·
RI
v. Innis
o
Commenting on the danger of a
loose weapon to handicapped kids nearby is not; cops had no info to believe
Defendant would be sympathetic to the danger.
o
If a suspect asserts his Miranda R2C, QUESTIONING MUST STOP.
o
Waiver of Miranda rights
§ Must
be knowing and voluntary
§ Burden
is on state (a heavy burden since the environment is presumed coercive).
§ If
Miranda rights are reasserted, questioning must stop.
·
Dickerson
v. U.S.
o
Congress tried to overrule Miranda by establishing voluntariness as
the sole requirement for admissible confessions.
o
SUPREME COURT: Congress can’t supersede Miranda, which is our interpretation of the constitution.
·
IL
v. Perkins
o
No Miranda req’d before confessing to a snitch.
·
Admissibility
o
Subsequent Mirandized confessions after an un-Mirandized confession
§ OR v. Elstad
·
No attenuation of the taint
because no coerciveness by cops.
§ MO v. Seibert
·
Cops can’t intentionally omit
Miranda in order to circumvent the rules.
o
Physical
fruits
of un-Mirandized incriminations are
admissible.
o
Un-Mirandized incriminations are admissible before Grand Jury.
o
Un-Mirandized incriminations may be used to impeach Defendant if he takes the stand.
§ BUT,
state cannot comment on Defendant’s silence.
·
Moreno article
·
Weisselber article
·
Exceptions to Miranda warnings requirement.
o
Impeachment
o
Emergency
§ NY v. Quarles
·
Cop ordered Defendant to stop,
frisked for weapons, found an empty holster (this was a custodial
interrogation); Cop asked Defendant where his gun was and Defendant answered.
·
SUPREME COURT: Public safety exception to Miranda; we don’t want to deter cops
from asking important questions like this in potentially dangerous situations.
o
Booking
§ PN v. Muniz
·
Routine biographical info
necessary for booking does not require Miranda.
o
Waiver
§ Must
be knowing and voluntary
·
Determined by ToC
o
Fare
v. Michael C.
§ Juvenile’s
waiver is judged under ToC, with youth as one factor.
§ Invocation
of Miranda rights must be CLEAR and
UNAMBIGUOUS
·
Berghuis
v. Thompkins
o
Remaining silent for 3 hours is
not an invocation of RtRS; there is no implied invocation of RtRS.
§ NC v. Butler
·
Waiver can be implied; Defendant refused
to sign waiver form, but agreed to talk anyway.
·
SUPREME COURT: No police misconduct, Defendant impliedly
waived Miranda rights by talking.
§ Moran v. Burbine
·
Cops don’t have to tell suspect
about his atty’s attempts to contact him.
·
This omission and the absence of
atty does not make Miranda waiver unknowing and involuntary.
§ MI v. Mosely
·
Assertion of Miranda rights does not carryover to interrogation of a different but related crime by a
different cop after a two hour break; the waiver was valid.
§ Edwards v. AZ
·
After Defendant invokes R2C, ONLY Defendant can
re-initiate interrogation.
·
However, if Defendant invokes RtRS, cops can re-initiate.
§ Minnick v. MS
·
After Defendant invokes R2C,
Defendant can NEVER be questioned again (about that crime) without his atty
present
o
UNLESS Defendant initiates
o
EVEN IF he already met with his
atty
SIXTH
AMENDMENT RIGHT to COUNSEL
·
Right to counsel is separate from
Miranda, which is based on 5th
Amd.
o
Miranda
§ Once
Defendant asserts his right to counsel, questioning must stop unless Defendant re-initiates.
The unequivocal invocation of the right to counsel indicates that the
environment is coercive.
·
R2C at all critical stages
o
Post-charge lineups and adversary-like ID procedures
o
Post-charge probable cause
hearings
o
Preliminary hearings
o
Post-indictment interrogations
o
Arraignments
o
Plea bargaining
·
No R2C at parole/probation
hearings, habeas corpus proceedings, all non-adversarial proceedings.
In relations between Defendant and State
·
Massiah
o
Once adversarial judicial
proceedings begin (either grand jury indictment or arraignment), Defendant has
right to assistance of counsel and state cannot have any interaction with him
w/o his atty present UNLESS Defendant initiates.
§ U.S. v. Henry
·
Jailhouse snitch can’t ask
questions or even have any sort of
conversation with D.
§ Kuhlman v. Wilson
·
But, snitch can be a passive
listener and testify.
·
Brewer
v. Williams
o
D was arraigned; Defendant travelled
w/ cops to Des Moines; invoked R2C and RtRS.
o
Cop gave Christian Burial Speech
and Defendant confessed.
o
SUPREME COURT: The Speech was the functional equivalent of
interrogation because the cop subjectively knew (D’s
religion, etc.) that the Speech would elicit incriminations.
o
C.f.,
RI v. Innis
(the functional equivalent of interrogation is what an objectively reasonable cop knows would elicit incriminations
for Miranda purposes).
o
Policy: R2C, inter alia, is afforded much higher protection AFTER arraignment as
opposed to after arrest because the full force of the state is against him;
much more coercive.
·
Related crimes
o
McNeil
v. WI
§ The
6th Amd. does not carryover to unrelated crimes. After the pre-trial
hearing and appointment of counsel, cops can question Defendant about a
different crime.
o
TX
v. Cobb
§ Furthermore,
6th Amd. is offense-specific.
§ D
committed burglary and killed the homeowner; state only charged him w/
burglary. Cops later receive evidence of the murder and talk to D. Defendant confesses.
§ D’s
6th Amd. right only applied to the burglary charge that commenced,
did not carryover
·
Waiver
o
According to Glannon, the State
can approach D, obtain a waiver (Miranda
waiver is sufficient for a 6th Amd. R2C waiver), and question D.
This is totally opposite to teachings.
o
MI
v. Jackson
§ D
was appointed counsel at arraignment, then cops approached Defendant and asked
to question him, Defendant waived right to counsel, Defendant incriminated
self.
§ SUPREME
COURT: First, accepting the appointment
of counsel is an invocation of 6th Amd. The waiver was invalid b/c
cops initiated the questioning after right to counsel invoked.
o
Montejo
v. LA
§ Overturns
MI v. Jackson
§ LA
automatically appoints attys. Defendant did not know that he had an atty.
Defendant was Mirandized, waived R2C,
and gave incriminations. Do Ds have to affirmatively assert R2C or is it
implied when atty is appointed?
§ SUPREME
COURT: The incriminations are admissible
even though his atty wasn’t present after appointment; Ds must affirmatively
invoke R2C
o
MD
v. Shatzer
§ D
questioned about sexual assault; Defendant invoked R2C and questioning stopped.
2.5 years later, cops got new evidence and cops interrogated D. Defendant waived
R2C and made incriminations.
§ SUPREME
COURT: The initial invocation definitely
does not carryover 2.5 years. Majority said the R2C invocation ends after 14
days.
In relations between Defendant and his
counsel
·
When the R2C attaches
o
Rothgery
v. Gillespie
§ R2C
attaches AFTER formal charges and AT the first hearing before a judge.
o
Gideon
v. Wainwright
§ R2C
in all felony cases whether or not jail is a punishment.
o
Argersinger
v. Hamilton
§ R2C
in all cases where incarceration or a suspended sentence of jail is actually
imposed (i.e., if prosecutor and judge want to impose jailtime, then judge must
offer PD).
§ Scott
·
No R2C for misdemeanors w/ no
jailtime
o
Lassiter
v. Dept. of Social Services
§ DP
requires R2C even in some non-criminal proceedings where liberty not at stake,
3 part test:
·
Nature of private interest (e.g.,
child custody)
·
Gov’t interests
·
Risk of erroneous decision.
·
Waiver of R2C and Right to
Self-Representation
o
Faretta
v. CA
§ Must
be knowing and voluntary; cannot raise IAC later; can lose RtSR if disruptive.
·
Effective assistance of counsel
o
Strickland
v. Washington
§ Deficient
performance according to objective standard of reasonableness
§ That
prejudiced the D
·
Prejudice presumed when
o
No counsel
o
Counsel does nothing
§ Burdine v. Johnson
·
Sleeping during trial is NOT per
se prejudicial.
o
State interference w/ counsel
o
Counsel has conflict of interest
o
U.S.
v. Cronic
§ The
deficient performance must be specific
errors that counsel made in order to raise IAC. Counsel’s youth, lack
of time to prepare, and unrelated expertise is not enough.
o
FL
v. Nixon
§ Normally,
counsel would need to get Defendant’s approval to concede guilt (after
explaining the benefits). But Defendant refused to cooperate w/ PD; PD conceded
guilt to focus on sentencing.
§ SUPREME
COURT: Counsel must inform Defendant of
trial strategy, but counsel must make damning but reasonably tactical trial
decisions if Defendant is uncooperative.
o
Bobby
v. Van Hook
§ ABA
standards are merely evidence of reasonable atty conduct, not mandates.
o
Porter
v. McCollum
§ Counsel
failed to present Defendant’s heroic war record and mental effects of war.
§ SUPREME
COURT: The failure was deficient
performance that prejudiced Defendant b/c reasonable probability that Defendant’s
sentence would have been less.
o
Wong
v. Belmontes
§ Counsel
failed to present mitigating evidence b/c it would have opened the door to damning
evidence. Supreme Court: Deficient perhaps, but not prejudicial (not but for
cause).
o
Sturgeon
v. Quarterman
§ IAC
because: 1) Alibi witness refused to testify b/c prosecution threatened him w/
criminal charges for a previous burglary on which SoL had run AND had been
dismissed w/ prejudice. IAC b/c counsel did not investigate. 2) Counsel failed
to challenge cross-racial ID. 3) Also, lineup was suggestive; Defendant was
only one w/ a goatee.
5TH
AMENDMENT V. 6TH AMENDMENT RIGHTS TO COUNSEL
·
Suppression under the 6th Amd. is triggered
when
o
Adversarial judicial proceedings
have commenced AND
o
The state engages in deliberate elicitation of
incriminations from D.
§ Subjective to the cop
·
Suppression under the 5th Amd. is triggered
when
o
Custodial interrogation
o
D unambiguously requests counsel
·
Duration of R2C protections under
5th Amd. (Miranda)
o
The time that Defendant is in uninterrupted custody.
·
5th Amd.
Self-Incrimination
o
D’s self-incriminating testimonial evidence is inadmissible
o
Testimonial evidence is NOT
§ Fingerprints;
photos; DNA; line-up ID; hair.
o
Schmerber
§ Cops
can draw suspect’s blood.
o
What does “compelled” mean?
§ McKune v. Lile
·
SCT upheld policy of asking
certain Defendant’s to admit to past criminal behavior. If they refused, they
would lose prison benefits. And, the admissions could be used against Ds at
future trials.
·
SUPREME COURT: 5th Amd. is not w/o costs. Withholding benefits is not compulsion.
o
Documents
§ Generally,
documents are not protected by 5th Amd.
·
Docs are not testimonial
evidence.
·
Required Records doctrine
o
Docs req’d to be maintained by
law are discoverable IF requirement
§ Comes
under a non-criminal, regulatory area
§ Is
directed at the public at large, not a suspect group
§ Is
rationally related to the regulatory purpose.
IDENTIFICATION
PROCEDURES
·
IDs implicate the 4th
and 6th (and 14th) Amendments. 5th Amd. is not
implicated b/c ID is not testimonial.
4th Amd.
·
Fruit of the poisonous tree
doctrine applies
o
If an arrest is unlawful, ANY
SUBSEQUENT ID IS UNLAWFUL
6th Amd.
·
R2C applies only to post-indictment physical lineups
o
“Trial-like” settings; Accused v.
State and witness
o
Does NOT apply to photo lineups or any pre-indictment IDs (but see 14th Amd.).
·
U.S.
v. Wade
o
SUPREME COURT: post-indictment lineup is a critical stage;
untrustworthiness of victim’s ID; ability of cops to manipulate.
·
IL
v. Kirby
o
The pre-arraignment ID w/o
counsel present was OK.
§ Can
still challenge on DP/14th.
·
U.S.
v. Ash
o
No R2C when prosecutor shows
witnesses a photo lineup post-indictment. Defendant does not have a right to be
there, so counsel doesn’t either.
14th Amd.
·
Two prong analysis of ID
procedure. IDs can infringe on one, but not both, prongs.
o
Unnecessarily suggestive AND
§ Simmons factors (armed
and dangerous, etc.)
§ Exigencies
require more suggestiveness; non-exigencies don’t.
o
Overly suggestive
§ Reliability
of ID (Foster factors)
·
Foster
v. CA
o
Pre-Wade post-indictment lineup (ToC test)
o
D was tall and placed in initial
lineup, one-on-one ID, and another lineup (he was the only repeat), all w/
short people. Supreme Court: This is so suggestive it violates DP.
·
Foster is the only
case that provides for suppression of lineup ID based on DP; however, factors
to consider in ToC test are
o
The state (location, eyesight, etc.)
of the witness at the crime scene
o
Degree of attention
o
Accuracy and detail of description
o
Level of certainty
o
Length of time between the crime and the ID.
·
Simmons
v. U.S.
o
Cops showed photos of Defendant only
to witnesses (no other photos, only D’s).
o
SUPREME COURT: the procedure was suggestive but not
unnecessarily so. Public safety: suspects were armed and dangerous; cops needed
to determine if they were on the right track. The procedure was not overly
suggestive either b/c bank was well lit, no masks, and 5 witnesses agreed on
same D.
·
Neil
v. Biggers
o
Vic ID’ed Defendant after a
showup (D only)
o
SUPREME COURT: The suggestive procedure was not
unnecessarily suggestive; cops could not find any suitable extras. It was not
overly suggestive (i.e., it was reliable b/c…) b/c the Vic firmly resisted
ID’ing several other suspects, spent a lot of time w/ D, and suffered a
terrible rape.
·
Mason
v. Braithwaite
o
Undercover cop showed a single
photo of D.
o
SUPREME COURT: This was unnecessarily suggestive but not
overly suggestive. There is no reason to believe that there was a danger of
misidentification. Cop had a good view, accurate description, was certain, made
the ID w/in a short period of time after the incident, viewed the photo by
himself (no coerciveness).
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