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Criminal Procedure Outline #1


  1. 4th amendment
    1. Scope
      1. Not applicable to a S/S of property located I a foreign country, owned by nonresident alien briefly on US soil. 
      2. “The people”: class of persons who are part of a natl community or who have otherwise developed a sufficient connection with this country to be considered part of that community.
      3. Limits only govt action. Does not apply to private S/S
      4. 4th amendment does not prevent all searches and seizures – only those which are unreasonable.
    2. What is a search?
      1. General Approach
        1. 4th amendment protects people, not places
          1. Reach of A cannot turn on presence or absence of physical intrusion into and given enclosure.
        2. Twofold requirement
          1. Actual, subjective expectation of privacy
          2. The expectation must be one society is prepared to recognize as reasonable (objective)
        3. 4th A governs not only the seizure of tangible items, but the  recording of oral statements
        4. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.
      2. Electronic surveillance
        1. Amendment offers no protection to wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. No warrant to search and seize is required.
        2. No difference whether undercover agent  instead of immediately recording and transcribing conversations with D
          1. Simultaneously records them with electronic equipment on his person
          2. Or carries radio equipment which simultaneously transmits the conversations to other agents or recording equipment.
        3. If the conduct of an agent operating without electronic equipment does not invade constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations.
        4. Law treats surveillance largely according to whether agent is visible or invisible to the subject.
          1. Contents of the mind deliberately revealed to another person are willingly shared.
          2. The secret eye or ear bypasses constitutional concern.
        5. Pen registers
          1. No actual expectation of privacy in numbers dialed, regardless of the location from which the call is placed.
          2. Even if there is an actual expectation of privacy, it is not legitimate because the numbers dialed are necessarily revealed to the phone company.
        6. No legitimate expectation of privacy in information voluntarily revealed to third parties.
      3. Dog sniffs: not a search within the meaning of the 4th A
        1. Less intrusive
        2. Limited information
      4. Open field: not within the 4th A
        1. May include any unoccupied or undeveloped area outside the curtilage of a home
      5. Curtilage is within the 4th A
        1. Land immediately surrounding and associated with the home
        2. Factors in determining whether it is curtilage
          1. Proximity of area claimed to be curtilage to home
          2. Whether area is included in enclosure surrounding home
          3. Nature of the uses to which area is put
          4. Steps taken by resident to protect area from observation by passersby
        3. Does not bar all police observation even if steps are taken to secure privacy
      6. Aerial: depends on whether the  helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that an expectation of privacy is not one that society is prepared to recognize as reasonable.
      7. Garbage left outside curtilage for pickup: not within 4th A
      8. Thermal imaging: within the 4th amendment if it picks up information regarding the interior of the home not otherwise obtainable without physical intrusion and device used is not in general use.
        1. Visual observation is no search at all (police not required to shield eyes)
      9. Luggage squeezing is within the 4th A
      10. Scope is generally defined by its express objective
    3. What is a seizure?
      1. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property
      2. Law enforcement may seize what they have PC to believe is criminal evidence
        1. Contraband
        2. Fruits of a crime
        3. Instrumentalities used in the commission of an offense
        4. Mere evidence
      3. Seizure of a person occurs when the officer, by means of physical force or a show of authority, has in some way restrained the liberty of a citizen
    4. Standing
      1. To have standing to raise the 4th A, one must have been the victim of a search or seizure (one against whom the search was directed).
      2. A D must demonstrate that he personally has an expectation of privacy in the place searched and that his expectation is reasonable.
      3. Coconspirators/codefendants have no special standing
      4. 4th amendment rights are personal and may not be vicariously asserted
      5. The fact that one is legitimately on the premises is not determinative of whether they had a legitimate expectation of privacy in the particular areas searched.
      6. When D testifies on a motion to suppress evidence on 4th A grounds, his testimony may not be thereafter admitted at trial as evidence of guilt unless D makes no objection.
      7. Society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home.
      8. Property used for commercial purposes is treated differently for 4th A purposes than residential property.
    5. Consent
      1. Consent is an exception to the requirements of both a warrant and PC
      2. Question of fact to be determined from the totality of all the circumstances
      3. When subject of search is not in custody, knowledge of right to refuse consent is not necessary but is a factor to be considered in determining voluntariness.
      4. A search conducted in reliance on a warrant that later turns out to be in invalid cannot be justified on the basis of consent.
      5. A person may set limits on the time and scope of the search and may withdraw consent later.
      6. Third party consent
        1. Police may obtain consent to a search of the premises from an occupant who shares authority over the area in common with a co-occupant who later objects to use of the evidence.
        2. A physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.
      7. Exigent circumstances may render consent irrelevant
        1. Fairly perceived need to preserve evidence
      8. The police do not need a particular reason to ask for consent to search
      9. Apparent consent
        1. Objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had control over the premises.
      10. A consent search is invalid if police exceed the scope of the consent granted.
    6. Probable Cause
      1. A search or seizure conducted in the absence of PC is unreasonable
      2. PC to arrest exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.
      3. Aguilar-Spinelli
        1. Where the officer’s information is hearsay, no warrant should issue absent good cause for crediting that hearsay.
        2. If the information rests on hearsay, the informant must declare either
          1. That he himself has seen or perceived the fact or facts asserted
          2. Or that his information is hearsay, but there is good reason for believing it.
        3. In determining whether there is PC, magistrate must:
          1. Evaluate the truthfulness of the source of the information (integrity of a person), and
          2. Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion (logic of a proposition)
      4. Gates
        1. So long as an issuing magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the 4th A requires no more.
        2. The task of the issuing magistrate is to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence will be found in a particular place.
      5. Anticipatory warrants: PC that at some future time, certain evidence will be located at a specified place.
        1. Require the magistrate to determine that it is now probable that contraband, evidence of a crime, or a fugitive will be on the described premises when the warrant is executed.
          1. If triggering condition occurs there’s is fair probability of contraband or evidence being found, and
          2. There is probable cause to believe triggering condition will occur.
    7. Warrants
      1. Arrest Warrants
        1. Public place: no warrant required to make a felony arrest in a public place
        2. In home: warrantless felony arrests in the home are prohibited absent PC and exigent circumstances.
          1. Absent exigent circumstances, a warrantless entry is unconstitutional even when a felony has been committed and there is PC to believe that incriminating evidence will be found within. An entry to arrest implicates the same interests and justifies the same level of constitutional protection.
          2. An arrest warrant founded on PC implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.
        3. All arrests, whether in public or in a private residence must be supported by PC.
        4. In third person’s residence: Search warrants and arrest warrants serve different purposes An arrest warrant is inadequate to protect the 4th amendment interests of persons not named in the warrant when their homes are searched without consent and in the absence of exigent circumstances.
        5. Exigent circumstances:
          1. Hot pursuit of a fleeing felon
          2. Imminent destruction of evidence
          3. Need to prevent suspect’s escape
          4. Risk of danger to the police or to other persons inside or outside the dwelling
        6. Gerstein hearing: a police officer, rather than a magistrate, makes the initial PC decision before a warrantless arrest. 4th amendment requires a judicial determination of PC as a prerequisite to extended restraint of liberty following arrest.
          1. Determination must be made before or promptly after arrest
          2. Jx must provide a PC determination within 48 hours after a warrantless arrest, absent any bona fide emergency or other extraordinary circumstances.
        7. Executing an arrest warrant: use of force: An arrest, even if based on PC, constitutes an unreasonable seizure of the person if the method of making the arrest is unreasonable.
          1. A police officer may not use deadly force to prevent escape of fleeing felon unless there is PC to believe that the suspect poses a threat or serious physical harm, either to the officer or to others if not immediately taken into custody.
      2. Search Warrants
        1. Requirements
          1. Oath or affirmation
          2. Based on PC
          3. Issued by neutral magistrate
            1. More reliable safeguard than the hurried judgment of a law enforcement officer.
          4. Particularity
            1. Intended to prevent general searches and to prevent the seizure of one thing under a warrant describing another.
            2. A warrant may cross-reference a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.
        2. Execution of search warrant
          1. Knock and announce
            1. Knock and announce requirement may give way under exigent circumstances
              1. Threat of physical violence
              2. Evidence would likely be destroyed if advance notice were given
            2. Court must determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.
            3. Police must have reasonable suspicion that knocking and announcing under the particular circumstances would be dangerous or futile, or would inhibit effective investigation of the crime. Evaluated as of the time the officers entered the hotel room.
              1. RS: something more than an inchoate and unparticularized suspicion or hunch; minimal level of objective justification for the police conduct.
            4. Interests protected
              1. Protection of human life and limb
              2. Protection of property
              3. Protects elements of privacy and dignity
          2. Timing: facts known to officer are what count in judging reasonable waiting time.
            1. In some circumstances damage to property can be relevant (when immediate entry is not required as a result of exigency)
          3. Freezing the situation: police may effectively seize premises while procuring a warrant if
            1. There is PC
            2. Good reason to fear destruction of evidence before a warrant could be obtained
            3. Police make reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. (neither searched nor arrested without the warrant)
            4. Restraint was imposed for a limited period of time (no longer than necessary for the police, acting with diligence, to obtain the warrant).
          4. Scope of the search: premises
            1. Police may search containers large enough to contain the evidence for which they are searching.
            2. Officers may seize an object not described in the warrant if they have PC to believe it is a seizable item (contraband or a fruit, instrumentality, or evidence of a crime).
            3. Information that becomes available to the officers immediately before or during the execution of a warrant may require them to cease or narrow their search, not withstanding the dictates of the warrant.
              1. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and disclose, to the issuing magistrate.
              2. Need to allow some latitude for honest mistakes that are made by officers in the process of making arrests and executing search warrants.
          5. Scope of search: people
            1. A warrant to search a home or other premises does not provide implicit authority to search persons found at the scene, even if the criminal evidence for which the police are looking might be on them.
            2. The officer may search a person coincidentally at the scene if there is an independent basis of PC as well as some justification for conducting the search without a warrant.
          6. Seizure of persons
            1. A warrant to search a residence implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.
            2. Includes reasonable force to secure and detain occupant
      3. When are warrants required
        1. Exigent circumstances
          1. The 4th amendment does not require police officers to delay in the course of an investigation when to do so would gravely endanger their lives or the lives of others.
          2. Burden is on the govt to demonstrate exigent circumstances that overcome presumption of unreasonableness attached to all warrantless home entries.
          3. There is no murder scene warrant exception.
        2. Community caretaking function: strict rules relating to warrants and PC often do not apply.
          1. Law enforcement officers may enter without a warrant to assist persons who are seriously injured or threatened with such injury
        3. Searches incident to arrest
          1. Robinson: A search may be made of the person of the arrestee incident to a lawful arrest.
            1. Must meet requirement of reasonableness
            2. Justified on grounds other than officer safety and can therefore involve a relatively extensive exploration of the person.
            3. Full search of the person is not only an exception to the warrant requirement, but is also a reasonable search.
          2. Chimel
            1. A warrantless search incident to a valid arrest may generally extend to the area that is considered to be in the possession or under the control of the person arrested.
              1. Area from which he might gain possession of weapon or evidence
            2. To assure safety of officers
            3. To prevent destruction of evidence
            4. No reasonable justification for routinely searching any other room other than that in which an arrest occurs.
            5. The scope of a permissible warrantless search must be no broader than the justification for the warrantless conduct compels.
          3. Arrest inventory: occurs without warrant or PC
            1. Protects arrestee from theft of valuables
            2. Reduces risk of false claims of theft
            3. Ensures contraband and dangerous instrumentalities are not smuggled into jail.
          4. Belton – Cars: passenger compartment
            1. When an officer has made a lawful arrest of the occupant of a vehicle, he may search the passenger compartment of that vehicle.
              1. Encompasses only the interior of the passenger compartment and not the trunk.
            2. May also look inside any containers in the passenger compartment
            3. Belton governs even when an officer does not make contact until the person arrested has left the vehicle.
            4. Once officer determines there is PC to arrest, it is reasonable to allow officers to ensure their safety and preserve evidence by searching the entire  passenger compartment.
          5. Pretextual stops/arrests
            1. Subjective intent alone does not make otherwise lawful conduct illegal
            2. The constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers.
        4. Searches not incident to arrest
          1. Chambers: car
            1. Once an accused is under arrest and in custody, a search made at another place, without a warrant, is not incident to arrest.
            2. Automobiles may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or office, provided that there is PC to believe the car contains articles the officers are entitles to seize.
            3. The right to search and the validity of the seizure are not dependent on right to arrest. They are dependent on reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.
            4. The privacy interests in a a car are constitutionally protected; but the ready mobility of the car justifies a lesser degree of protection of those interests (Carroll).
          2. Carney: Motor homes
            1. Among the factors to be used in determining whether a warrant is required:
              1. Ready mobility (or up on blocks)
              2. Whether vehicle is licensed
              3. Whether it is connected to utilities
              4. Whether is had convenient access to a public road
          3. Car inventory
            1. PC and warrant requirements do not apply to routine inventory searches.
            2. If an officer has a reason to impound the vehicle after arresting the driver, it may be towed to the impound lot and inventoried.
          4. Luggage and containers
            1. A person’s expectation of privacy in personal luggage is substantially greater than in an automobile.
            2. Warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest if the search is remote in time or place from the arrest or no exigency exists.
            3. When no exigency is shown to support the need for an immediate search, the warrant clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority.
            4. The reasons for not requiring a warrant for the search of an automobile do not apply to searches of personal luggage taken by police from the automobile.
            5. Cars with coincidental containers: when police have PC to search a car without a warrant under the Carroll-Chambers-Carney line of cases, they may also search any container found during the car search that is large enough to hold the evidence for which they are looking.
            6. Police may search without a warrant if their search is supported by PC
            7. PC to believe a container placed in the trunk contains contraband or evidence does not justify a search of the entire car.
            8. Officers with PC to search a car may inspect any passengers’ belongings found in the car that are capable of concealing the object of the search.
          5. Plain view and touch
            1. Where the initial intrusion that brings the police within plain view of an article of incriminating character is not supported by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.
            2. An object that comes into view during a search incident to arrest that is appropriately limited in scope may be seized without a warrant.
            3. Plain view doctrine also applies where a police officer is not searching for evidence against the accused but nonetheless inadvertently comes across an incriminating object.
            4. Limitations on plain view
              1. Plain view alone is never enough to justify warrantless seizure of evidence. Officer must have lawful right of access to the object.
              2. The incriminating character of the item must be immediately apparent
            5. PC is required to invoke the plain view doctrine
            6. A truly cursory inspection, one that involves merely looking at what is already exposed to view without disturbing it, is not a search and does not require even reasonable suspicion.
            7. If an officer lawfully pats down a suspect’s outer clothing for weapons and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of suspect’s privacy beyond that already authorized by the officer’s search for weapons.
    8. Reasonableness
      1. Terry
        1. Whenever an officer accosts an individual and restrains his freedom to walk away, he has seized that person.
        2. Facts must be judged based on an objective standard.
        3. In the absence of PC to arrest the search must be limited to the discovery of weapons that may be used to harm the officer or somebody nearby.
        4. Whether reasonably prudent mad in the circumstances would be warranted in the belief that his safety or that of others is in danger.
        5. Must be a carefully limited search of the outer clothing.
        6. Terry also applies where a police officer seeks to investigate a completed felony
        7. Length of detention: in assessing whether the detention is too long to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel  their suspicions quickly, during which time it was necessary to detain defendant.
          1. The question is not whether some alternative was available but whether the police acted unreasonably in failing to recognize or to pursue it.
      2. Seizures v non-seizures
        1. A person is seized only if in view of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.
          1. Threatening presence of several officers
          2. Display of a weapon by an officer
          3. Physical touching of the suspect
          4. Use of language or tone indicating compliance may be compelled
        2. The reasonable person test is objective
        3. There is no requirement that police must always inform citizens of their rights to refuse when seeking permission to conduct a warrantless consent search.
        4. A seizure does not occur when a police officer yells at a suspect to halt and the suspect continues to flee.
        5. An arrest requires physical force or submission to the assertion of authority
      3. Reasonable suspicion
        1. Dependent on both upon both the content of information possessed by police and its degree of reliability
        2. The reasonableness of suspicion must be measured by what the officers knew before they conducted their search.
        3. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.
        4. Officers are not required to ignore the relevant characteristics of a location determining whether the circumstances are sufficiently suspicious to warrant further investigation.
        5. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.
        6. Properly crafted stop and identify laws are constitutional – a state law requiring a suspect to disclose his name in the course of a valid terry stop is consistent with prohibitions against unreasonable searches and seizures.
        7. An officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.
        8. Identification laws are invalid if the stop is unlawful for want of reasonable suspicion.
      4. Buie: Protective sweep
        1. A protective sweep is a quick and limited search of premises incident to an arrest, conducted to protect the safety of officers or others.
        2. Narrowly confined to a cursory visual inspection of those places in which a person might be hiding.
        3. There must be articulable facts which taken together with reasonable inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
        4. Arresting officers are permitted to take reasonable steps to ensure their safety after and while making the arrest.
        5. A protective sweep is limited to a cursory inspection of those spaces where a person may be found.
        6. The sweep may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.
      5. Personalty
        1. when an officer’s observations lead him to reasonably believe that a traveler is carrying luggage that contains narcotics, the principles of Terry permit the officer to detain the luggage briefly to investigate the circumstances that aroused the suspicion, provided that the investigative detention is properly limited in scope.
        2. Strong countervailing govt interests justify a brief detention of personal effects based only on specific articulable facts that the property contains contraband or evidence of a crime.
        3. The limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person’s luggage on less than PC.
      6. Car frisks
        1. Terry frisk of the passenger compartment
        2. The search of the passenger compartment of a car, limited to those areas in which a weapon may be hidden, is permissible if the officer possesses a reasonable belief that the suspect is dangerous and may gain immediate control of the weapons.
        3. If the officer discovers contraband other than weapons during a legitimate Terry search, he cannot be required to ignore it.
      7. Regulatory and special needs searches
        1. A search or seizure comes within the special needs category when a perceived need beyond the normal need for criminal law enforcement makes the warrant or PC requirements impracticable or irrelevant.
        2. Administrative searches (Camara-See): Except in the event of emergency or consent, residences and commercial buildings may not be entered to inspect for code violations without an administrative search warrant.
          1. PC for administrative warrants can be supplied by a showing of nonarbitrary justification to inspect the premises.
          2. No particularized suspicion of wrongdoing is necessary.
          3. Govt has approved warrantless administrative searches of closely regulated industries even in the absence of emergency or consent.
        3. School Searches
          1. Neither the warrant requirement nor PC applies to search by public school officials.
          2. Public school teachers and administrators may search students without a warrant if:
            1. There are reasonable grounds for suspecting the search will turn up evidence that the student is violating the law or the rules of the school.
            2. Once initiated, the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
        4. Border searches
          1. At the border and its functional equivalent, a person may be stopped and her belongings searched without a warrant and in the absence of individualized suspicion of wrongdoing, pursuant to the right of the sovereign to protect itself from entry of persons and things dangerous to the nation.
          2. With regard to roving border patrols, the agents need reasonable suspicion of criminal activity to detain the car occupants briefly.
          3. Vehicle occupants may be stopped for questioning at fixed checkpoints without individualized suspicion of wrongdoing.
        5. Checkpoints
          1. A seizure occurs when a vehicle is stopped at a checkpoint. The question is whether the seizure is reasonable.
          2. The intrusion is measured by the duration of the seizure and the intensity of the investigation.
          3. The intrusion resulting from the brief stop at the sobriety checkpoint is indistinguishable from the checkpoint stops upheld in Martinez-Fuerte.
          4. Where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes, the court has declined to suspend the usual requirement of individualized suspicion.
          5. The constitutionality of checkpoint programs depends on a balancing of the competing interests at stake and the effectiveness of the program.
            1. Gravity of public concerns served
            2. Degree to which the seizure advances the public interest
            3. Severity of the interference with the individual liberty
        6. Drug testing
          1. Court considers the nature and immediacy of the govt’s concerns regarding drug use.
    9. Remedies for 4th amendment violations
      1. Exclusionary rule
        1. All evidence obtained by search or seizure in violation of the constitution is inadmissible.
      2. Exclusionary rule exceptions
        1. Impeachment of D exception: D may not take advantage of court’s exclusion of narcotics by testifying in direct or cross-examination that he has never possessed narcotics.
        2. Objective good faith exception: Evidence may be introduced in the prosecution’s case-in-chief during a criminal trial even though it was concededly obtained as a result of an unreasonable search or seizure.
          1. Officer’s reliance on the magistrate’ PC determination and sufficiency of the warrant must be objectively reasonable.
          2. Exception does not apply where the magistrate has wholly abandoned his judicial role.
          3. If the warrant is so facially deficient in failing to particularize the place or things to be searhed/seized, that the officers cannot reasonably presume it valid, the exception does not apply.
          4. Exception does not apply if the officers were dishonest or reckless in preparing their affidavit.
          5. The Leon framework also supports a categorical exception to the exclusionary rule for clerical errors of court employees in non-warrant situations.
      3. Fruit of the Poisonous Tree
        1. Attenuation
          1. The connection between the illicit police conduct and the evidence may become so attenuated as to dissipate the taint.
          2. Factors
            1. Length of time between initial illegality and seizure of fruit in question.
            2. Flagrancy of the initial misconduct
            3. Existence or absence of intervening causes
            4. Presence or absence of an act of free will by D resulting in the seizure of the fruit.
          3. The ER should be invoked with greater reluctance in the case of a live witness – the greater the willingness to testify, the greater the likelihood they would be discovered by legal means.
        2. Independent Source Doctrine
          1. Even if there is a poisonous tree, this fruit came from a different unpoisoned tree.
          2. Must be proven by a preponderance of the evidence.
        3. Inevitable discovery doctrine
          1. Must be proven by a preponderance of the evidence
        4. Home violations: arrests and knocks
          1. Where the police have PC to arrest a suspect, the ER does not bar use of a statement made by D outside his home, even though the statement is taken after an arrest made in the home in violation of Payton.
          2. Exclusion of seized evidence may not be premised on the mere fact that a constitutional violation was a but-for cause of obtaining evidence.
            1. Does not apply to knock and announce
  2. Interrogations
    1. Police Interrogation
      1. Rationales for suppressing confessions
        1. To prevent unreliable evidence from reaching the jury
        2. To use only statements taken without coercion
        3. To prove guilt only with statements that manifest a minimal level of mental freedom.
    2. 5th Amendment
      1. Miranda v Arizona
        1. The prosecution may not use statements stemming from custodial interrogation of D unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 
        2. The accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
          1. Right to remain silent
          2. Anything can and will be used against the individual in court
          3. Right to counsel at the interrogation
            1. Failure to ask for a lawyer does not constitute a waiver
            2. No effective waiver unless specifically made after the warnings are given
          4. If he is indigent a lawyer will be appointed to represent him.
        3. If the individual indicates at any time that he wishes to remain silent, the interrogation must cease.
        4. Valid waiver will not be presumed from silence.
        5. Warnings and waiver are prerequisites to the admissibility of any statement made by D.
      2. Dickerson
        1. Miranda announced a constitutional rule that may not be overruled by an act of congress
        2. Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts.
      3. Limiting the Exclusionary Rule
        1. Impeachment
          1. A confession taken in violation of miranda may be used to impeach D at trial
          2. Compelled confessions may not be used for any purpose
            1. Distinction between a miranda violation and a violation of the constitutional privilege against compulsory self-incrimination.
        2. Fruit of the poisonous tree
          1. A violation of miranda is not a violation of the underlying 5th Amendment right itself.
      4. Custody
        1. Custodial interrogation: questioning initiated by law enforcement officers after a person has been taken into custody of otherwise deprived of his freedom of action in any significant way.
          1. Applicable to questioning which takes place in a prison setting during a suspect’s term of imprisonment in a separate offense.
          2. Applicable to questioning in a suspect’s home after he has been arrested and is no longer free to go where he pleases.
        2. A noncustodial situation is not converted to one in which miranda applies simply because the questioning took place in a coercive environment.
        3. Officers are not required to administer miranda warnings to everyone they question.
        4. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.”
        5. A person subjected to custodial interrogation is entitled to the procedural safeguards enunciated in miranda, regardless of the nature or severity of the offense of which he is suspected or for which he is arrested.
        6. Persons temporarily detained pursuant to a traffic stop are not in custody for purposes of miranda.
        7. Two inquiries in determining custody
          1. What were the circumstances surrounding the interrogation?
          2. Given those circumstances, would a reasonable person have felt they were not at liberty to terminate the interrogation and leave?
        8. Objective test is applied to determine whether there was a formal arrest or a restraint on movement associated with a formal arrest.
      5. Interrogation
        1. Miranda comes into play when a person in custody is subjected to express questioning or its functional equivalent.
          1. Any words or actions on the part of the police that the police should know are reasonably likely to produce a response from the suspect.
          2. Focuses primarily on perceptions of suspect rather than intent of police.
        2. Routine booking question exception when the answers are not testimonial and therefore not covered by the 5th amendment.
      6. Waiver
        1. A valid waiver will not be presumed from silence
        2. An express statement may constitute a waiver
        3. Waiver must be determined on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.
        4. A waiver must be voluntary, knowing and intelligent.
        5. Waiver is not crime-specific – a waiver of miranda is to interrogation in general
        6. Waiver is personal
        7. Some stations now require videotaping of all interrogations.
      7. Invocation of counsel
        1. When accused has invoked his right to have counsel presence during an interrogation, a valid waiver cannot be established by showing only that he responded to further police-initiated custodial interrogation.
        2. Questioning may resume in only two situations
          1. Lawyer shows up
          2. Suspect initiates a new discussion.
        3. An invocation of the right to counsel applies to all crimes and the knowledge of the invocation is imputed to all law enforcement.
        4. Irrebuttable presumption that a criminal suspect, after invoking his miranda right to counsel, can never validly waive that right during any police-initiated encounter, even if he has actually consulted his atty.
        5. The request for counsel must be unambiguous.
          1. Reasonable officer in the circumstances would understand the statement to be a request for an atty.
        6. Right to atty is personal – lawyer cannot ask for client.
      8. Invocation of silence
        1. The admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his right to cut off questioning has been scrupulously honored.
        2. A previous request not to talk to a different detective from a different bureau about a different crime does not extend to a second interrogation that is also preceded by warnings.
        3. Initiation occurs only when an inquiry from the suspect can be fairly said to represent a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation.
      9. Miranda and second interrogations
        1. A confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiently an act of free will to urge the primary taint.
        2. The admissibility of any subsequent statement should turn on whether it is knowingly and voluntarily made.
        3. Absent deliberately coercive or improper tactics in obtaining the initial statement, the fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of miranda warnings should suffice to remove the conditions that precluded admission of the earlier statement.
        4. When miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.
        5. The self-incrimination clause is not implicated by the admission into evidence of the physical fruit of a voluntary statement.
        6. The exclusionary rule does not apply
        7. The constitution is violated only when statements taken without warning are introduced into evidence. The exclusion of any unwarned statements is a complete and sufficient remedy for any perceived Miranda violations.
      10. Miranda Exception: Public Safety
        1. The availability of the exception does not depend upon the motivation of the individual officers involved.
    3. 6th amendment
      1. Massiah
        1. Petitioner was denied the basic protections of the 6th amendment right to counsel when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.
        2. Once adversary proceedings have commenced against an individual, he has a right to legal representation when the govt interrogates him.
      2. Deliberate elicitation
        1. It falls to the state to prove an intentional relinquishment or abandonment of a known right or privilege.
        2. The right to assistance of counsel may be waived after it has attached without notice to or consultation with an atty.
        3. Waiver must be knowing and intentional
        4. The inevitable discovery exception is an exception to the general rule that the fruit of a violation of massiah must be suppressed.
        5. The massiah right to counsel arises even when the suspect does not know he is subject to police elicitation, as in massiah. Waiver here is impossible.
        6. D must demonstrate that police and informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks.
      3. Massiah Waiver
        1. The arraignment signals the beginning of adversary proceedings and thus the right to assistance of counsel.
        2. Written waivers are insufficient to justify police-initiated interrogations after a request for counsel.
        3. If police initiate an interrogation after D’s assertion of his right to counsel, at an arraignment or similar proceeding, any waiver of D’s right to counsel for that police-initiated interrogation is invalid.
        4. Once an accused is represented by counsel, the state may approach only through counsel.
        5. Statements taken in violation of jackson may be used to impeach.
        6. Nothing in the 6th amendment prevents police from approaching and seeking a waiver from a suspect who knows of the indictment and neither has counsel nor requests a lawyer.
        7. Four categories of massiah
          1. Counsel events
            1. D requests counsel
            2. D is appointed counsel
            3. D retains counsel
          2. Absence of counsel event
            1. D does not request counsel and the legal system does not provide counsel
          3. Police may not re-approach after a counsel event, but in the absence of a counsel event police may secure a voluntary waiver.
          4. Offers the same protection as miranda except that massiah but not miranda applies when the police are trying to obtain information and the suspect is unaware that he is talking to the police.
      4. Massiah v Miranda
        1. The 6th amendment right is offense-specific
          1. It cant be invoked once for all future prosecutions because it does not attach until a prosecution is commenced.
        2. The Miranda rule is not offense specific: once a suspect invokes the miranda right to counsel for interrogation regarding one offense, he may not be approached regarding any offense unless counsel is present.
        3. The test for same offense in the 6th A context is the same as in the 5th A double jeopardy clause.
          1. The test finds statutory offenses to be the same only when the elements of one offense are necessarily included in the elements of the other offense.


Written by freelawschooloutlines

October 13, 2009 at 5:04 am

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