Crim Pro Outline[44] (1)
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Chapter 1
Arrest – Must be based on probable cause
Prosecutor’s Decision to Charge – Completely discretionary; accomplished by criminal Complaint
Arraignment – Defendant is informed of the charges.
Grand Jury – Fifth Amendment to U.S. Constitution. Supreme Court has not applied this right to the states through the Due Process Clause of the Fourteenth Amendment.
Petition for Habeas Corpus – In federal court, must be based on an alleged violation of the U.S. Constitution other than the Fourth Amendment. Sometimes called collateral review because it is
done outside of the appeal process.
Chapter 2 - What Constitutes a Search?
a. Olmstead applied the law of trespass from property law to define a search. Olmstead court found no trespass because there was no physical invasion of the building, thus no trespass and no search.
Goldman v. US (1942)
●
No search when gov agents placed dictaphone outside a building to listen to conversation inside
●
No entry, no trespass, no search or seizure
Onlee ●
Consensual conversation between petitioner and CI
●
Listening to the conversation was not a search because no trespass, and consensual on part of petitioner b. Katz Doctrine – From Harlan concurring opinion – 1) a person exhibits an actual (subjective) expectation of privacy; 2) the expectation is one that society is prepared to recognize. These two factors have since been condensed to ask the question of whether a person has a reasonable expectation of privacy.
●
Two prong test (comes from Harlan concurrence) ○
Subjective belief of privacy
○
Is society prepared to accept that belief as reasonable
●
Now standard for 4th amendment privacy inquiry ask: whether a person had a reasonable expectation of privacy c. Third Party Doctrine – An individual has no reasonable expectation of privacy in information or items voluntarily conveyed to a third party. Smith v. Maryland (pen registers); California v. Greenwood (garbage).
Smith v. Maryland
●
Telephone users know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does
in fact record this information for a variety of legitimate business purposes. it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that
the numbers they dial will remain secret (see long distance and other calls on their monthly bills).
●
Petitioner says he used phone in his house so privacy. But no cause not talking about contents, his
actions do not indicate he reasonably thought the number was private from the phone company. And even if he did think that it’s not reasonable. Court consistently has held no expectation of privacy in things willingly turned over to third parties. California v. Greenwood
●
The court held that the Fourth Amendment did not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home because there was no subjective expectation of privacy in the garbage that society accepted as objectively reasonable. The garbage
was sufficiently exposed and did not have Fourth Amendment protection because it was deposited in an area particularly suited for public inspection for the express purpose of having strangers take it. The court concluded that the police could not reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the
public.
d. Houses v. Open Fields
What is a house? Includes
1. temporary residences such as hotel rooms and overnight guests of a resident;
Minnesota v. Carter (1998)
3 factors to consider to determine (and uphold) the privacy interests of guest
1.
The purely commercial nature of the transaction
2.
The relatively short period of time on the premises
3.
Lack of a close personal relationship between the defendants and the householder
●
Likely an interest in the personal effects the guest brought with them but not in the location or house
2. garages (Taylor v. United States, 286 U.S. 1, 5 (1932));
●
Court held that the search was unreasonable and that the unlawfully obtained evidence should have been suppressed. The Court found that the agents had abundant opportunity to obtain a search warrant, that the purpose of the search was to secure evidence to support a future arrest, and that the presence of the odor of whiskey did not strip petitioner of his constitutional guarantees against unreasonable searches.
3. commercial buildings (See v. City of Seattle, 387 U.S. 541, 543 (1967));
●
Court ruled that administrative entry, without consent, upon the portions of commercial premises which were not open to the public could only be compelled through prosecution or physical force within the framework of a warrant procedure. The Court held that the basic component of a reasonable search under the U.S. Const. amend. IV, that it not be enforced without a suitable warrant procedure, was applicable to business
as well as to residential premises. Consequently, appellant was improperly prosecuted for exercising his constitutional right to insist that a warrant be obtained authorizing entry
upon his locked warehouse.
4. Limits to what constitutes a house (Minnesota v. Carter, 525 U.S. 83 (1998).
●
an overnight guest in a home could claim the protection of U.S. Const. amend. IV, but one who was merely present with the consent of the householder could not. In addition, property used for commercial purposes was treated differently for U.S. Const. amend. IV
purposes than residential property.
5. Curtilage – harbors “intimate activities associated with the sanctity of a man’s home and the privacies of life.” Oliver v. United States, 466 U.S. 170 (1984), quoting Boyd v. United States, 116 U.S. 616, 630 (1886).
●
Curtilage: area immediately surrounding the house (property) in question, enjoys same 4th amendment protections as the home
Four factors:
- Proximity to the house
- Whether the area in question is within an enclosure surrounding the home
- The nature of the uses to which the area is put
●
Residential v. commercial v. other
- Steps taken to protect the area ●
Act of locking creates a greater expectation of privacy normally and can create an expectation of privacy in an otherwise public area U.S. v. Gunn
●
Leading case on curtilage
●
Barn that was used to manufacture meth was outside the curtilage of defendant’s home using 4 factors
○
60 yards away from house
○
Barn outside fence that surrounded house
○
Police surveillance was not being used for the intimate activities of the home (trucks came up, mechanisms)
○
Fence was designed to corral livestock and did nothing to shield view from passersby
Understand the difference between residential curtilage and commercial curtilage (Dow Chemical v. United States, 476 U.S. 227 (1986).
Open fields: Land beyond the home and its curtilage. No Fourth Amendment protection.
Dow Chemical v. U.S.
●
Court found that the curtilage of a home is different from outdoor areas or spaces between buildings and structures of a manufacturing plant- such areas are between curtilage and open fields
○
“Open fields” land beyond the home and its curtilage with no 4th amendment protections - does not need to be open or a field aka all property outside the curtilage (sidewalks, forests)
●
Aerial photography is ok but physical entry is prohibited without warrant
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●
So on commercial property area between buildings need warrant but aerial photos is ok
e. Aerial surveillance
Be familiar with the various cases and discussion of public airspace
Florida v. Riley
●
Defendant could not reasonably have expected the contents of his greenhouse to be immune from examination by an officer seated in an aircraft flying in navigable airspace at an altitude of 500 feet where such private and commercial flight at that altitude was routine.
California v. Ciraolo (1986)
●
Use of a 35 mm camera from a helicopter at 1000 feet to photograph marijuana plants ok as officers were in public airspace and able to see with naked eye
f. Ground Level Views
Be familiar with cases involving tracking devices
U.S. v. Knotts (1983)
●
Court found no reasonable expectation of privacy in a person traveling on public roads
●
Beeper attached to a drum of chloroform to monitor drums movement in the car in which it traveled to locate the meth lab- so police had consent of first person with drum and then tracked person handed off to
○
Two factors important: had consent of the owner of the drum at the time the tracker was placed and traveling around public roads
U.S. v. Karro (1984)
●
Transfer of the drum to the def and monitoring its movements on the road ok
●
Monitoring of drum inside the home required a warrant
●
Roads are open fields
g. Electronic Surveillance
Monitoring of an informant; Use of a thermal imaging device; GPS tracking device attached to a vehicle
U.S. v. White ●
The Court concluded that the Fourth Amendment did not bar from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant and a government informant, and which the agents overheard by monitoring the frequency of a radio transmitter carried by the informant and concealed on his person.
●
Hoffa said no matter how much a defendant trusts a CI these expectations are not protected by 4th
amendment. Defendant Assumes the risk when discussing illegal activities with another person.
Kyllo v. United States (2001)
●
"obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . [4] at least where (as here) the technology in question is not in general public use" is a violation of the 4th amendment ●
In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.
●
Entering a house even by a fraction of an inch is a search and is subject to fourth amendment protections United States v. Jones (2012)
●
We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a “search.” gov went on to private property to install GPS. ●
Despite Katz essentially supplanting Olmstead
Scalia uses Oldmstead
in his analysis because there was an actual physical invasion when the officers placed the GPS on the undercarriage of the vehicle ●
Distinguishes Karo and Knotts because the locating device was placed on the item with the consent of the owner before it came into defendant’s possession- that is why in those cases they could track the device as long as on public roadways
●
the Katz
reasonable-expectation-of-privacy test has been
added to
, not substituted for
, the common-law trespassory test
○
Judge says you can use either both are good law but I think you would use Olmstead
/common law trespass for physical entry and Katz
for anything less
○
Either can be used to invalidate a search
h. Dog Sniffs
Familiarize yourself with the general concept of dog sniffs – is it a search?
Are there limitations?
US v. Jardines
●
The officers entered the boundaries of the curtilage, the front porch being a classic example of a constitutionally protected area. While an officer not armed with a warrant could approach a home and knock, because any private citizen might do so, introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence was something else. There was no customary invitation to do that. That the officers learned what they learned only by physically intruding on defendant's property to gather evidence was enough to establish that a Fourth Amendment search occurred.
●
The scope of a license--express or implied--is limited not only to a particular area but also to a specific purpose.
●
That the officers learned what they learned only by physically intruding on Jardines' property to gather evidence is enough to establish that a search occurred.
●
The illegality of bringing the dog onto the curtilage invalidated the search
●
The home was violated when the officer went onto the curtilage with a drug sniffing dog
●
Sensory enhancement is not permitted without a warrant
●
No fourth amendment violation if an officer uses his regular senses to perceive something in a place that he legally is allowed to be- can use that info to obtain a search warrant
US v. Place
●
No legitimate expectation of privacy in an airport when a dog is walking by you
●
No legitimate expectation of privacy to your luggage when going to get on an airplane if a dog walks by you
●
If the dog alerts then that creates probable cause to allow for a search
Illinois v. Caballes
●
Police do not need probable cause reasonable suspicion or a warrant to conduct a sniff test with a dog and it does not constitute a search
●
use of a well-trained narcotics-detection dog--one that did not expose noncontraband items that otherwise would have remained hidden from public view--during a lawful traffic stop, generally did not implicate legitimate privacy interests. The dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations did not rise to the level of a constitutionally cognizable infringement.
Rodriguez v. United States
●
Prolonging a traffic stop while waiting for a dog to do a sniff test is an unlawful seizure once the citation is issued and hold the vehicle ●
Police officers have a reasonable amount of time to detain the person to issue them a citation
●
Court considers this a factual inquiry and will look at whether the amount of time was reasonable for that kind of citation G. flashlights
U.S. v. Lee (1927)
●
Use of a searchlight to determine contents of a boat on the high seas is not a search
Texas v. Brown (1983)
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Use of a flashlight to illuminate the interior of a car doesn't violate 4th amendment
Chapter 3 - Probable Cause
Aguilar/Spinelli two part test
a. Application for warrant must state the underlying circumstances to enable the magistrate to judge the validity of the CI’s conclusion.
b. Affiant must provide support to the conclusion that the CI is credible or his information is reliable. Illinois v. Gates – Aguilar/Spinelli test abandoned.
a. Totality of the circumstances approach that includes the Aguilar/Spinelli factors.
Aguilar-Spinelli Test
●
Court of appeals said totality of the circumstances is the proper inquiry in determining whether probable cause existed for a magistrate to issue a warrant - supreme court said nah
1. Application for warrant must state the underlying circumstances to enable the magistrate to judge the validity of the CI’s conclusion 2. The affiant must provide support for the conclusion that the CI is credible or his information is reliable ●
This test is applied when police are using
an informant’s
information to determine if there is probable cause
○
So would not apply if the agent is undercover Aguillar- Spinelli
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●
Need for voracity of the informant and reliability and now under Gates this is a factor to consider under totality of the circumstances Illinois v. Gates (1983)
●
Court considers if Aguilar-Spinelli is the correct case to apply whenever there is an informant- they say no ●
Totality of the circumstances is the correct approach
●
Aguilar-Spinelli test will come into play (is still good law) just now the two prongs are considered a part of the totality of the circumstances analysis ○
Voracity, reliability, etc
●
Gates
applies to informants as well but wouldn’t necessarily be wrong to apply a totality of the circumstances inquiry for whether there was probable cause even in the absence of an informant Maryland v. Pringle
●
Under these circumstances the drugs could be attributed to everyone in the car because they each had access to the drugs and the cash in the glove compartment ●
So there was no unlawful seizure ●
Ibarra
distinguished on the grounds that in Ibarra the bar patrons do not have the same access or control over the bar as the bartender (who was in the scope of the warrant) ●
Guilt by association ○
Drug dealer would not knowingly permit someone not associated with the illicit activity to be a part of it or in proximity ●
FL state law requires more than what was found here to have probable cause for an arrest Chapter 4 - Search Warrants
Particularity Requirement
Andresen v. Maryland, 427 U.S. 463 (1976) (exhaustive list of items in warrant and reference to other “instrumentalities and evidence of crime at this time unknown”); Maryland v. Garrison, 480
U.S. 79 (1987) (warrant for search of a third-floor apartment that contained two apartments); Groh v. Baltimore, 540 U.S. 551 (2004) (failure to incorporate by reference the affidavit into the warrant); United States v. Grubbs, 547 U.S. 90 (2006) (condition precedent to warrant being executed).
●
Warrants must particularly describe the place to be searched and the persons or things to be seized ●
If officers are executing a search warrant then they are in a place they have a lawful right to be and therefore can seize anything found even if not what they were looking for but needs to be reasonable so if looking for something small then makes sense to look in drawers or what not but if looking for a stolen car then could not look inside a closet or anything like that
○
All places where could reasonably find that thing (as described in the warrant)
○
Locked places- would not be allowed to enter unless warrant specifies that they can search locked places, better to get warrant for locked item ■
Probably could break lock in a room or front door but likely not a locked item
Andresen v. Maryland (1976)
●
Warrant authorized the search of an office for an exhaustive list of carefully described documents
together with other fruits, instrumentalities, and evidence of crime at this time unknown
●
Not violative of the particularly, warrant made clear that the word “crime” referred to a specific offense- false pretenses, with respect to particular pieces of property ●
Said “at this time unknown” was read to refer to false pretenses which was described elsewhere in
the warrant or the affidavit that supported it Groh v. Ramirez (2004)
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Warrant failed to identify any of the times described in the affidavit, but simply authorized a search of the ranch
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The warrant did not incorporate by reference the affidavit
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The warrant was invalid because it failed to describe with particularity the person or things to be seized US v. Grubbs (2006)
●
Affiant states in his affidavit supporting a search warrant that the officer executing the warrant could not search the respondents premises unless and until a certain parcel had been received and placed inside the residence
●
This condition wasn't included in the warrant which included attachments describing the residence and the items to be seized
●
The court held that the failure to include the triggering condition did not violate the particularity clause because the language of the 4th amend explicitly requires the inclusion only of the place to
be search and item to be seized not conditions precede to the warrant
●
So again because did not include language incorporating affidavit then won’t look at it
Maryland v. Garrison (1987)
●
Fourth amendment “particularly describing the place to be searched and the persons or things to be seized.” A.k.a. scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found.
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Objective analysis as to whether the officer’s had reasonable belief ●
Court recognizes some latitude for honest mistakes made by officers while making arrests and executing search warrants ●
Warrant was not particularized because it did not mention only the third floor apartment that McWebb lived in
●
To be particularized the warrant must state where is to be searched and for what
Knock and Announce
a. When is entry into a residence without knocking and announcing permitted?
Richards v. Wisconsin (1997)
●
Fourth amendment at minimum requires case by case determination of whether entry justified dispensing with knock and announce requirement. ●
Rule: in order to justify a no knock entry the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.
b. How long must officers wait after knocking and announcing before forcibly entering a dwelling?
Banks
●
If officers wait 15-20 seconds to enter after knocking and announcing that is generally going to be found to be reasonable
○
Because dealers usually keep drugs stashed in the bathroom they cannot wait longer than that because risk destruction of evidence ●
If they wait less than that then the facts have to justify that ●
If would’ve allowed exception here they would’ve risked that exception swallowing the rule so needs to be case by case determination ●
How long officers have to wait depends on the totality of the circumstances ●
It is irrelevant whether the occupant hears the announcement c. Does exclusionary rule apply to a violation of the knock and announce rule?
Hudson v. Michigan (2006)
●
The exclusionary rule does not apply to a violation of the knock and announce rule
Chapter 5 – Arrests
a. Can a postal inspector make a felony arrest without a warrant?
United States v. Watson (1976)
●
Postal service officers can arrest without a warrant as long as reasonable grounds to believe committed or will commit felony- statute. Strong presumption of constitutionality when it is an act of congress as here which gives postal authorities this power. Common law rule prevails in courts as well that officers may arrest without warrant for misdemeanor or felony committed in front of them or if reasonable belief felony was committed. Warrantless arrests ok if based on probable cause. b. Can a police officer enter a private residence to make a routine felony arrest pursuant to a state statute without a warrant?
Payton v. New York (1980)
●
Warrantless entry is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within. Privacy interest of individual naturally extends to not allowing officers to barge in for an arrest. Difference between intrusiveness to search and arrest are of degree rather than kind. Cannot go into home where privacy is protected most unless exigent circumstances. ●
4th amendment made applicable to states by 14th amendment prohibits police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. c. Can the police execute a search warrant for an individual in the home of a third person without the third person’s consent?
Steagald v. US (1981)
●
If have an arrest warrant then can search the suspects home but cannot search a third party’s home absent a search warrant for that home d. Can a government official be personally liable for authorizing a federal prosecution or authorizing a request for material witness warrants for terrorism suspects where probable cause
is lacking and when the official may have an improper motive for giving such authorization?
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Ashcroft v. Al-Kidd
●
Fourth amend reasonableness is predominantly an objective inquiry
●
Two limited exceptions: special needs and administrative-search cases- these take into account the officer’s subjective state of mind ○
Special needs: special needs beyond the normal need for law-enforcement. Need to deter drug use in public schools, need to assure railroad employees not under the influence
○
Administrative search: search or seizure is in execution of an administrative warrant authorizing inspection. Fire damaged premises to determine cause, inspection of residential premises to ensure compliance with housing code
●
An objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis that the arresting authority
had an improper motive
Chapter 6 – Searches Incident to Arrest
Search Incident to Arrest: Purpose: remove weapons and preserve evidence ●
Need probable cause for the arrest, if have probable cause for arrest then to have a valid search incident to arrest need: ?
○
Justification for this exception: Police security, prevent escape, prevent destruction of evidence, evidence of the crime of the arrest in the vehicle ●
For search incident to arrest can search passenger compartment not trunk
○
Can search person and area surrounding them
●
Need reasonable suspicion to conduct search incident to arrest, for search of an automobile need probable cause
a. Chimel v. California, 395 U.S. 752 (1969) (search of an entire home incident to arrest – was this constitutionally justified?)
●
Search of the arrestee’s person and the area within his immediate control – the area from within which he might gain possession of a weapon is justified b. United States v. Robinson, 416 U.S. 218 (1973) (pat down of an arrestee resulted in the discovery of heroin inside a cigarette package – permissible?).
●
When an officer had probable cause for an arrest, as the officer in the present case did, a more extensive exploration of the suspect's person was authorized. This was to protect the officer, but also to preserve evidence. The fact that defendant was to be arrested for a driving offense did not lessen the officer's right to search defendant.
c. Can a search incident to a citation be conducted?
Knowles v. Iowa ●
a search incident to a citation is not valid authority to search, MUST be a valid custodial arrest to trigger a search incident to arrest.
d. Virginia v. Moore, 553 U.S. 164 (2008). State law required a citation and not an arrest for the offense. Was a subsequent search incident to arrest violative of the Fourth Amendment?
Virginia v. Moore - An arrest based on probable cause, is a lawful (i.e. constitutional) arrest even if the arrest is in violation of state law.
e. Vale v. Louisiana, 399 U.S. 30 (1970) – Can the police conduct a search incident to arrest of a home when the arrest occurs outside of the house?
●
Court declined to hold that an arrest on the street outside of defendant's dwelling justified a warrantless search of defendant's dwelling as providing its own "exigent circumstance" so as to justify a warrantless search of defendant's house
.
f. New York v. Belton, 453 U.S. 454 (1981). Search incident to arrest of an automobile. What is constitutionally permissible?
●
Police can search the passenger area of the car
●
Containers = both open and closed glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage boxes, bags, clothing, and the like BUT NOT THE TRUNK
●
Belton searches are not justified when the occupant does not have access to the vehicle. BUT a search could be justified if it could be shown that there was a reasonable belief that there was evidence of the crime or the offense in the vehicle
Thornton v. United States (2004) - the Court extended the rule of Belton to cover recent occupants of a vehicle.
g. Arizona v. Gant, 556 U.S. 332 (2009) – Can the passenger compartment of a vehicle be searched incident to arrest when there is no possibility that the arrestee could gain access to the vehicle at the time of the search?
Adopted Scalia’s concurring opinion in Thorton – a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
h. Atwater v. City of Lago Vista, 532 U.S. 318 (2004) – Can a search incident to arrest be conducted when the arrest is for a minor traffic offense?
●
The court determined that the Fourth Amendment does not limit police officers' authority to arrest
without warrant for minor criminal offenses. Respondent officer had probable cause to believe that petitioner arrestee had committed a crime in his presence; therefore, respondent officer was authorized to make a custodial arrest without balancing costs and benefits or determining whether
or not the arrest was in some sense necessary. The court rejected petitioners' argument that peace officers' authority to make warrantless arrests for misdemeanors was restricted at common law to instances of breach of the peace.
i. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473 (2014) – Is the search of a cell phone incident to arrest constitutionally permissible?
●
The U.S. Supreme Court unanimously held that the police officers generally could not, without a warrant, search digital information on the cell phones seized from the defendants as incident to the defendants' arrests. While the officers could examine the phones' physical aspects to ensure that the phones would not be used as weapons, digital data stored on the phones could not itself be used as a weapon to harm the arresting officers or to effectuate the defendants' escape. Further,
the potential for destruction of evidence by remote wiping or data encryption was not shown to be
prevalent and could be countered by disabling the phones. Moreover, the immense storage
capacity of modern cell phones implicated privacy concerns with regard to the extent of information which could be accessed on the phones.
j. Carpenter v. United States, 138 S.Ct. 2206 (June 22, 2018) – Can information obtained from cell towers to track the location of a cell phone be obtained on less than probable cause? What line of cases govern this determination – third party doctrine cases applying the reasoning of Smith v. Maryland and its progeny or privacy cases applying Katz?
●
No view on “tower dumps” and whether obtaining cell site location for a shorter period of time would receive protection from the 4th A. ●
If the period of time is LESS than 7 days, obtaining CSLI information is NOT a search
●
More than 7 days was left open Chapter 7 – The Automobile Exception
US v. Ross (1982)
●
Where there is probable cause to search a vehicle, it justifies the search of the entire vehicle and its contents that may conceal the object of the search ●
So trunk and containers included
●
This deals with automobile exception only talking vehicles a. Mobile Homes – Can they be searched based on probable cause or is a search warrant required?
California v. Carney (1985)
●
Rule: Automobile exception: Privacy interest in an automobile are constitutionally protected however the ready mobility of the automobile justifies a lesser degree of protection.
●
searches without warrants are cool as long as probable cause.
●
Mobility creates circumstances of exigency that as a practical necessity make rigorous enforcement of the warrant requirement impossible. expectation of privacy with respect to one’s automobile is significantly less than home or office. reduced privacy expectations derive not only from Plainview but from pervasive regulation of vehicles on public highways (registration, brake lights, exhaust fumes). Public fully aware accorded less privacy and automobiles because of compelling governmental need for regulation.
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To search a vehicle need probable cause to believe evidence of contraband or a crime may be in the vehicle
●
Factors to consider if mobile home to be treated as residence v. vehicle:
○
Readily mobile
■
Elevated on blocks
○
Licensed
○
Connected to utilities ○
Convenient access to public road ●
Home higher expectation of privacy warrant required, car probably only need probable cause to search
b. Is there a privacy interest in the outside of a motor vehicle? If so, how great is that interest?
Caldwell v. Lewis (1974)
●
Police officer took paint scraping from the exterior of a car and examined the tire tread on one of the vehicles wheels
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●
The police had probable cause to believe this vehicle was an instrumentality of a crime, but no search warrant was obtained
●
In a plurality opinion the court found that a warrant was unnecessary and that any invasion of privacy under these circumstances was abstract and theoretical
●
As far as 4th amendment is concerned no expectation of privacy to the outside (exterior) of a vehicle c. To what extent may police officers search a vehicle to determine its VIN number without a warrant?
NY v. Class (1986)
●
There is no reasonable expectation of privacy in the VIN of a automobile
●
The VIN was likened by the court to the exterior of the vehicle, even though it is located in the interior of the passenger compartment
●
Federal law requires that the VIN be located in an area clearly visible to a person with 20/20 vision
●
Officers may view and record a VIN without a warrant
●
If the officer’s visual access is obscured the officer may reach into the vehicle and remove any items necessary to permit the visual inspection of the VIN ●
If VIN is on door and door is open police can open door, if the door is locked then cannot break in to see VIN
d. California v. Acevedo, 500 U.S. 565 (1991) – How did this case change the treatment of automobiles under the Ross and Carroll line of cases versus the treatment of containers under the Chadwick and Sanders line of cases? What was the reason for this change? What is now the extent of the permissible search?
California v. Acevedo (1991)
●
The police may search an automobile and the containers within it where there is probable cause to
believe that there is contraband in either ●
If outside the car, Chadwick would apply and need a warrant ●
Ross Carroll covers searches of automobiles when the police have probable cause to search an entire vehicle. Chadwick Sanders govern searches of luggage when the officers had probable cause to search only a container within the vehicle.
●
In Ross situation police can conduct a reasonable search under the fourth amendment without obtaining a warrant where as in the Sanders situation police had to obtain a warrant before they searched. ●
Sanders Chadwick law enforcement officers may seize a container and hold it until they obtain a search warrant
e. Wyoming v. Houghton, 526 U.S. 295 (1999) – Can police officers search a passenger’s belongings in an automobile when they have probable cause to search the vehicle containing those belongings?
●
Ross: if probable cause justifies search of lawfully stopped vehicle it justifies search of every part
and contents that may conceal object of search. If Ross wasn’t to include passengers would’ve expected language to that effect.
f. Collins v. Virginia, 584 U.S. ____ (2018) – Does the entry of law enforcement officials onto the
curtilage of a residence to determine whether suspected contraband is being kept on the premises constitute a search within the meaning of the Fourth Amendment? Why or why not?
●
Alito said need to consider degree of invasion
●
I would think also need to consider if officer’s had lawful right to be there as a member of the public and scope of implied license to same effect
●
[1]-A partially enclosed section of a driveway where a motorcycle was parked constituted curtilage protected by the Fourth Amendment. The driveway enclosure was an area adjacent to a home and to which the activity of home life extended; [2]-The automobile exception did not permit an officer to enter the curtilage without a warrant to search the motorcycle. The automobile exception did not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it did not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.
Chapter 8 – Terry Stops and Frisks
a. Terry v. Ohio, 392 U.S. 1 (1968) – May the police search an individual on less than probable cause when there is reasonable suspicion to believe that criminal activity is “afoot”? Why would such a search be permissible, and what is the permissible extent of this search?.
Terry v. Ohio (1968)
●
For valid terry stop need reasonable suspicion to believe criminal activity is a foot
●
Valid terry frisk need to fear for officer safety ●
initial pat down has to be for police safety and then further detention has to reasonable b. Florida v. J.L., 529 U.S. 266 (2000) – Is an anonymous tip that a person is carrying a firearm sufficient to justify a stop and frisk of that person under Terry and Gates? Should an “automobile
exception” be created for firearms to allow the search of a vehicle based on an anonymous tip?
FL v. J.L (2000)
●
Gates: Aguillar two prong: voracity and reliability - use this whenever an anonymous informant
●
Totality of the circumstances analysis - looking at all the facts to determine whether enough for Terry stop and frisk ●
The court affirmed a judgment holding that a Terry "stop and frisk" search of respondent based only on an anonymous tip was invalid under U.S. Const. amend. IV. The court held that an anonymous tip that a person was carrying a gun was, without more, insufficient to justify a police
officer's stop and frisk of that person. The tip pointing to respondent lacked the moderate indicia of reliability necessary because the call provided no predictive information to enable the police to
test the informant's knowledge or credibility.
c. Illinois v. Wardlow, 528 U.S. 119 (2000) – Is reasonable suspicion created by the unprovoked
flight of an individual to justify a stop and frisk of that individual? If so, does flight create a per se
presumption of reasonable suspicion?
Illinois v. Wardlow (2000)
●
Unprovoked flight + high crime area = reasonable suspicion and therefore; terry stop and frisk
d. Can a “drug courier profile” be used to create reasonable suspicion for a stop and frisk if the individual meets criteria of that profile?
US v. Sokolow (1989)
●
DEA agent stopped the defendant upon his arrival at Honolulu international airport on the suspicion of drug trafficking ●
Agents identified a number of factors that were part of a drug courier profile
●
Court found that factors being part of a profile does not detract from their evidentiary significance
as seen by a trained agent ●
Fitting drug courier profile can be used as a factor in totality but does not create reasonable suspicion alone unless at a traffic checkpoint near the border where officers are stationed to thwart drug trafficking
e. What is the “brevity requirement” for a detention under Terry? Is there a bright line rule?
US v. Sharpe (1985)
●
Defendant claimed that the length of the stop, approximately 20 mins was not defensible under Terry
●
The court disagreed and refused to impose strict temporal limitations upon terry stops. Instead this brevity inquiry focuses on whether the police acted reasonably and diligently in investigating their suspicion
●
Court found that officers acted appropriately and that any delay was caused by the evasive actions
of the defendants
●
So length of time just has to be reasonable based on facts
US v. Montoya De Hernandez (1985)
●
Customs agents did not violate the fourth amendment by detaining a woman arriving from bogota, columbia for 27 hours when they had reasonable suspicion that she was an alimentary canal smuggler ○
Suspected her of swallowing the drugs and therefore held her until she passed them
f. Michigan v. Long, 465 U.S. 1032 (1983) – How far can a police officer go in searching an automobile if there is reasonable suspicion to believe that the occupant of the vehicle is involved
in criminal activity? Why? Does it matter whether the occupant is the driver or a passenger? (Arizona v. Johnson, 555 U.S. 323 (2009)). Michigan v. Long (1983)
●
Whether a police officer may for officer safety lawfully conduct a terry search of a passenger compartment of a motor vehicle during a lawful stop of a motor vehicle
●
So does terry extend to a passenger compartment of a vehicle? Yes ●
But limited to those areas where a weapon would be hidden if officer believes suspect is dangerous and may possess weapons
Arizona v. Johnson (2009)
●
During a traffic stop, if an officer has an articulable and reasonable suspicion to believe that a driver or passenger is potentially dangerous the officer may frisk that individual for officer safety
●
So both driver and passenger subject to frisk
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g. Protective Sweeps – What is the extent to which an officer may conduct a search of a residence upon the arrest of an individual without reasonable suspicion of further criminal activity?
Maryland v. Buie
●
police may search closets or other spaces immediately adjoining the place of arrest from which an
attack could be immediately launched. Beyond these spaces, an officer may conduct a limited protective sweep or cursory visual inspection of the rest of the house ONLY IF the officer has a reasonable suspicion based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. ●
protective sweep permissible, finding that during an in home arrest police may look for criminal confederates in any area immediately adjoining the place of arrest without reasonable suspicion provided that there is a reasonable articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene
●
To justify a search of more remote areas (outside immediately adjoining areas), officer must produce facts sufficient to allow a reasonable prudent officer to conclude that an individual who might threaten officer safety is present in the area searched
Chapter 9 - Plain View Doctrine
●
A seizure of property occurs when there has been some meaningful interference by the government with an individual's possessory interests in the property in question a. Arizona v. Hicks – understand facts of case and the differences between the majority and dissenting opinions.
●
Need probable cause to search or even touch anything even when officers have a lawful right to be inside the home
b. Plain Feel Doctrine – What is it?
Coolidge
●
Three requirements for plain view doctrine to apply
○
Officers are in a place where the officers have a legal right to be
○
Officer uncovers incriminating evidence inadvertently
○
Contraband is immediately apparent
Chapter 10 – Racial Profiling
a. United States v Brignoni-Ponce, 422 U.S. 873 (1975) – Does racial heritage or national ancestry provide reasonable suspicion for the stopping and questioning of the occupants of a vehicle near the border by federal agents?
●
Officers without probable cause or consent can only ask about citizenship and ask about any suspicious circumstances
b. Whren v. United States, 517 U.S. 806 (1996) – Is the temporary detention of a motorist with probable cause to believe that a civil traffic infraction had been committed violate the Fourth Amendment? Would it matter that the motivation to stop the motorist was something other than a desire to enforce the traffic laws?
●
As long as police have probable cause to believe traffic violation has occurred, their underlying motivation in conducting the traffic stop is immaterial
●
To have grounds, police must observe traffic violation or have probable cause or reasonable suspicion to believe violation has occurred Chapter 11 – Seizures
a. Can federal agents conduct a generalized detention of individuals, without individualized reasonable suspicion, to question them about their citizenship or immigration status?
INS v. Delgado
●
Seems like the answer is yes. This case was where INS conducted surveys on work force of a factory to determine status
●
Court said it is ok because freedom to leave work whenever is always restricted because at work and no one here was actually seized or detained
b. Is an individual on a bus who is asked by a police officer to consent to a search of his luggage detained within the meaning of the Fourth Amendment? What is the proper standard in making this determination? What factors should be considered in applying this standard?
Bostick
●
In a bus situation not whether a person would feel free to leave but rather whether a reasonable person would feel free to deny officers request or otherwise terminate the encounter
●
In order to determine whether a particular encounter constitutes a seizure a court must consider all of the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s request or otherwise terminate the encounter
Drayton
●
Issue: whether the police examination of bus passengers without reasonable suspicion, constitutes
a seizure under the 4th amendment
●
Holding: no there is no seizure when the police simply board a bus and ask questions of the passengers
●
Rational: two factors: Bostick court said should be applied to these situations:
○
Whether the officer’s firearm was removed from its pouch or used in a threatening way
○
Whether the officers advised the passenger the he could refuse to consent to search
c. Is an airline passenger in a terminal detained within the meaning of the Fourth Amendment when that passenger is stopped by law enforcement officials and has his identification and passenger ticket taken? If so, what is permissible based on less than probable cause?
Royer
●
Investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop d. Is passenger luggage seized when the luggage is temporarily detained to permit a trained narcotics detection dog to sniff the luggage if the police have reasonable suspicion to believe that the luggage contains narcotics? If not, what is the permissible scope of such a temporary detention?
Chapter 12 - Police Use of Deadly Force
a.
Tennessee v. Garner, 471 US 108. When does apprehension constitute seizure? What type of force is appropriate for apprehending non-violent felons? What is the balancing test used by the court considering the reasonableness of a seizure? b.
Graham v. Connor 490 US 386. All claims of excessive force by police officers, whether deadly or not, in the course of any type of seizure, should be analyzed under a 4th amendment reasonableness standard rather than a substantive due process analysis. This is an objective analysis, and the officers underlying mitigation or intent is not relevant. c.
Three pre-conditions must be met in using the Garner reasonableness analysis: (1) the suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape; (3) where feasible, the officer must have given the suspect some warning. There pre-conditions need not be rigidly applied. Note the dissent- the rule adopted here is more rigid and inflexible than the reasonableness approach of Garner. Also that the dissent maintained that the Court has usurped the role of the lower courts. Chapter 13 - Consent Searches a.
Schneckloth v. Bustamante, 412 US 218. What must the State demonstrate in proving that a consent was voluntarily given? Is the voluntariness of a consent a question of law or fact? Must the State prove that the person being asked to consent to a search knew that he had a right to refuse to consent. Schneckloth v. Bustamonte
, 412 U.S. 218 (1973)
●
whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied
, is a question of fact to be determined from the totality of all the circumstances.
●
But the 4th and 14th Amendments require that a consent not be coerced, by explicit or implicit means
, by implied threat or covert force. No matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. ●
account must be taken of the possibly vulnerable subjective state of the person who consents
.
●
Valid consent exception to warrantless search
●
Basically says the person doesn’t not need to know they have the right to refuse consent in order for the consent to voluntary ●
Voluntariness is a question of fact to be determined by the totality of the circumstances b.
Bumper v. North Carolina, 391 US 543. The prosecutor’s “burden to prove that consent was freely and voluntarily given cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Bumper v. North Carolina (1968)
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●
Prosecutors burden to prove that consent was freely and voluntarily given cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Thus consent obtained as a result of an officer saying that he has a warrant to search the house is not a valid consent c.
Florida v. Jimeno 500 US 248. When permission was given to search the car by a driver,
a reasonable person in the position of the officer would have understood that the consent would include a closed paper bag contained in the car. However, in dicta, the Court suggested that a reasonable person would not have understood the consent to include opening a locked briefcase found in the car. FL v. Jimeno (1991)
●
Police overheard telephone conversation and believed to to be drug transaction so stopped Jimeno
after he committed a traffic violation
●
Jimeno gave consent to search and was informed he did not have to cooperate
●
Found cocaine in closed paper bag and SC found reasonable person would believe the consent given included the paper bag and Jimeno did not make an attempt to limit the scope and the search was reasonable cause lookin for drugs
d.
Illinois v. Rodriguez, 497 US 177. When may officers obtain the consent to search a premises from a person who is not the subject of the search? If it is later established that
the person providing consent did not have such authority, does this invalidate the search? Ill. v. Rodriguez
, 497 U.S. 177 (1990)
●
common authority rests on mutual use
of the property by persons generally having joint access or control for most purposes. The burden of establishing that common authority rests upon the State.
●
Person consenting must reasonably be believed to have authority to consent
●
Apparent authority is based on reasonableness/objective view
●
Actual authority is subjective e.
Georgia v. Randolph, 547 US 103. If a resident gives consent to search a premises, while a co-resident refuses consent, what are the police permitted or not permitted to do? What effect would the removal of the non-consenting resident have on the situation?
Would the fact that the case involved domestic violence change the above answers?
Georgia v. Randolph (2006)
●
Case where husband was present and refused to allow the search
●
Maj said if there is a protesting owner/co-tenant police officers do not have consent even if another person with authority gives it to them
●
Tricky tricky because if the other owner/co-tenant is like asleep or out back or whatever then no need to get their consent too
●
No valid consent when one occupant says no- says reasonable person would not enter if one occupant said no
●
You assume the risk your co-tenant will consent to search when you live with them (applies to common areas especially but maybe everything)
●
Cannot remove someone who police believes will not consent in order to get consent from co-
tenant f.
Fernandez v. California, 134 S.Ct. 1126. Domestic violence case. The police are permitted to enter a home w/o a search warrant after arresting and removing a physically
present and objecting tenant from the entrance if a co-tenant subsequently consents. An
occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. Chapter 14 - Administrative Searches (Special Needs)
1.
Inventory Searches
a.
Colorado v. Bertine, 479 US 367. What is the purpose of an inventory search? During an inventory search, may the police search containers found within the vehicle. How much discretion do the police have in determining the scope of an inventory search? Is an inventory search permitted if there is a less intrusive means of determining the contents of a vehicle? Colorado v. Bertine ●
Whether the fourth amendment prohibits law enforcement from conducting an inventory search of containers found with a vehicle
●
No. policies behind the warrant requirement and probable cause are not implicated in an inventory search. These policies are related to criminal investigative matters, not routine non-
criminal matters ●
Inventory searches protect the accused because it says exactly what they had at the time and protects police because could be weapons or something
●
Limitations on inventory searches: has to be standardized procedures for the dept when conducting an inventory search
○
Procedures must be in writing and must be followed by the officer for a valid inventory search 2.
Vehicle Checkpoint Searches
a.
US v. Martinez-Furerte, 428 US 543. May the border patrol agents stop and question persons at border checkpoints w/o individualized suspicion? Is so, why is this permitted? Does the distance of the checkpoint from the border factor into the legitimacy of the checkpoint? How much discretion do agents have in conducting secondary inspections at such checkpoints? Why? US v. Martinez-Fuerte ●
Whether the routine stopping of a vehicle at an interior fixed checkpoint as part of a border search
without reasonable suspicion is invalid
●
No. the stopping and questioning of persons without individualized suspicion at reasonable located checkpoints is valid
●
Maintenance at border checkpoints valid because need to secure borders government interest
●
Cannot impede the flow of traffic coming into country so don’t reasonable or individualized suspicion- border patrol can stop none or all to try and stem the flow of illegal aliens
●
Stops have to be limited and brief- can ask for documents but das it ●
If stop you at checkpoint and you appear to be of mexican ancestry can send them to another place to be held for a bit longer
b.
City of Indianapolis v. Edmond, 531 US 32. Are highway checkpoints whose primary purpose is general crime control permissible under the 4th amendment? ●
court affirmed the determination that the checkpoints violated U.S. Const. amend. IV because the primary purpose of the narcotics checkpoint program was to uncover evidence of ordinary criminal wrongdoing. Because the authorities pursued primarily general crime control purposes at
the checkpoints, the stops could only be justified by some quantum of individualized suspicion.
3.
Strip Searches
a.
Safford Unified School District #1 v. Redding, 557 US 264. What is the standard for searches of students in a school? When is a strip search of a student permissible? Safford Unified School District v. Redding
●
Is reasonable suspicion to believe that a student is distributing prescription drugs at school sufficient to justify a strip search of that student to determine if she is in possession of such drugs
●
No. under the precedent of NJ v. TLO the court recognized a modification of the level of suspicion needed to justify a search in a school setting- reasonable suspicion rather than probable cause. Justification for a strip search however requires more than the suspicion necessary for a search of outer clothes and belongings ●
Another student's statement that forbidden prescription and over-the-counter drugs came from the
student was enough to justify a search of the student's backpack and outer clothing. The student claimed that extending the search at the principal's behest to the point of making her pull out her underwear was constitutionally unreasonable. The principal knew beforehand that the pills were common pain relievers. What was missing from the suspected facts that pointed to the student was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that the student was carrying pills in her underwear. Thus, the Supreme Court held that the strip search of the student was unreasonable and a violation of the Fourth Amendment.
b.
Florence v. Board of Chosen Freeholders, 132 L.Ed.2d 566. When are jail authorities permitted to conduct a strip search of persons entering the jail population? Does it matter whether the offense is significant or minor? When is court review of the actions of jail officials in these circumstances appropriate. ●
court concluded that both of the search procedures did not pass constitutional muster under the Supreme Court's balancing test established in Bell. Noting that both procedures involved a complete disrobing, examination of the nude inmate's body, followed by a supervised shower, the
court held that these blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, were unconstitutional.
4.
Collection of DNA From Arrestees
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a.
Maryland v. King, 133 S.Ct. 1958. During the booking process, may law enforcement officials obtain DNA samples of arrestees through cheek swabs? Why or why not? What is the balancing test used by the court in determining the reasonableness of these types of law enforcement actions?
Maryland v. King
●
Whether obtaining a DNA sample by taking a cheek swab during the booking of an arrestee charged with a serious crime is an unreasonable search and violative of 4th amendment
●
No. while the swab of a cheek is a search, it is negligible, a factor to be considered in determining
reasonableness. In some special needs of law enforcement circumstances, there are diminished expectations of privacy. To determine reasonableness, a balancing test is used, weighing the promotion of a legitimate government interest against the degree to which the search intrudes upon an individuals privacy Chapter 15 - Exigent Circumstances a.
Walsh v. Wisconsin, 466 US 740. May the police enter a home without a warrant for a civil traffic offense? Why? Does the answer change if the traffic offense is criminal? Why? ●
Police bear burden of proving urgent need that would justify warrantless searches or arrests.
●
Application of exigent circumstances exception should also rarely be sanctioned when there is probable cause only for a minor offense. ●
State tries to argue hot pursuit, threat to public safety, and need to preserve evidence of blood-alcohol level. Hot pursuit unconvincing because there was no immediate or continuous pursuit from scene of the crime. Little to no remaining threat because abandoned vehicle. State of WI classifying first offense for this as non criminal, civil forfeiture offense with no imprisonment.
b.
Stanton v. Sims, 133 S. Ct. 1552. Note a minor retreat from Walsh. The court said that Walsh did not create a categorical rule for all minor offenses. Instead, the court stated that cases involving minor offenses “usually” require a warrant to enter a residence. Stanton v. Sims (2013)
●
Minor retreat from welsh
●
Welsh did not create a categorical rule for all cases involving minor offenses, saying only that a warrant is usually required ●
In some cases entering the house may be justified c.
Missouri v. McNeely, 569 US 141. Does a concern regarding the dissipation of alcohol in
the bloodstream support a rule of per se exigency? What is the appropriate test for a court in considering exigency? Do technological advances in the obtaining of a warrant effect the answers to the above questions? ●
Needs facts to justify exigency. Find exigency/exception through totality of the circumstances.
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●
With BAC there is inevitable delay anyway because have to transport and get medical professional to administer test, so not adding much greater delay to require warrant. Plus goes down gradually, not now or never situation. Much easier and faster to get warrants nowadays. ●
State wants bright line rule, but totality of circumstances on case by case basis is what the 4th amendment demands, plus not something unusual in 4th amendment jurisprudence. d.
Brigham City, Utah v. Stuart, 547 US 398. What is the emergency aid doctrine. Is the test for considering the appropriateness of an officer’s actions an objective or subjective one? ●
Respondents say officers were not there to help but to arrest but who cares it was reasonable for them to think someone was in danger or imminently in danger. Subjective minds of officers does not matter. Further not required for someone actually be unconscious or close to unconscious for there to be enough exigency for officers to intervene. e.
Kentucky v. King, 563 US 452. If the police make a warrantless entry into the wrong residence, what analysis will the court use in considering the actions of the officers? ●
As the officer testified, noises inside the apartment then led the officers to believe that drug-
related evidence was about to be destroyed, and, at that point they explained they were going to make entry. Given that the announcement was made after the exigency arose, it could not have created the exigency.
●
No 4th amendment violation up until point of entry so gucci
Chapter 16 - Exclusionary Rule
a.
Wolf v. Colorado, 338 US 25. In a state court prosecution, the 14th amendment does not
forbid the admission of evidence obtained by an unreasonable search and seizure. ●
In a prosecution for a state court for a state crime, the 14th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure b.
Mapp v. Ohio, 367US 381. Applies the exclusionary rule to the States through the 14th amendment due process clause. ●
Entering with no warrant, would not allow attorney to enter and inspect warrant, wrestled “warrant” away from Mapp
●
Exclusionary rule is not constitutional and we have fundamental right to have evidence suppressed c.
US v. Leon, 468 US 897. Recognised a good faith exception to the exclusionary rule, so that evidence obtained through reasonable reliance on a search warrant is admissible, even if the warrant should not have been entered. ●
Police officers executed a warrant under a good faith belief that the warrant was supported by probable cause
●
Later, it turned out that the warrant invalid for lack of probable cause
●
The court said in the absence of an allegation that the magistrate abandoned his detached and neutral role…
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d.
Illinois v. Krull, 480 US 340. Note exception to exclusionary rule where evidence obtained in reasonable reliance on a statue that was later invalidated. ●
Excluding evidence in a situation in which the police officers reliance on the statue was objectively reasonable would have little deterrent effect because an officer cannot be expected to question the judgment of the legislature that passed the law
e.
Davis v. US, 564 US 229. Note exception to exclusionary rule where evidence obtained in reasonable reliance on binding appellate precedent. f.
Herring v. US, 555 US 135. Police reliance on an arrest warrant that had been withdrawn but still in the police computer system due to bookkeeping error- no error if this was the result of isolated act of negligence rather than a systematic error. g.
Wong Sun v. US, 371 US 471. Enunciated the “fruit of the poisonous tree” and the attenuation doctrines. Evidence unlawfully obtained will taint other evidence which is fruit
of the tainted evidence, requiring the exclusion of the tainted evidence. However, if there
is sufficient attenuation between the unlawful actions of the officers and the evidence in question, the attenuation may dissipate the taint. ●
Whether evidence which was unlawfully obtained will taint other evidence obtained as fruits of the previous evidence requiring the exclusion of the subsequently obtained evidence
●
This where tainted fruit of the poisonous tree language comes from
○
It is the fruit of the illegality and therefore it is tainted by the illegality ●
If evidence is so attenuated then dissipates the taint ●
Fruit of poisonous tree doctrine: Any evidence which is illegally obtained will taint any subsequently obtained evidence unless there has been a sufficient attenuation between the initial illegality and the subsequent evidence ●
Things that attenuate: time, different people like police officers/prosecutors, voluntariness of defendant’s actions or statements, miranda warnings (argument for voluntariness)- fact intensive inquiry ●
Independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation ●
Inevitable discovery/source doctrine says that if prosecution can prove by a preponderance of the evidence that the evidence would have been discover inevitably h.
Nix v. Williams, 467 US 431. Inevitable discovery doctrine.
●
Court held that there was an inevitable discovery exception to the exclusionary rule, but that it included no such "good faith" requirement. It concluded that the record supported the finding that
the victim's body would inevitably have been discovered; and reversed the appellate court decision.
i.
Utah v. Strieff, 579 US. any taint resulting from an illegal detention may be dissipated by the existence of a valid arrest warrant after consideration of the three Brone factors: (1) temporal proximity between the initially unlawful stop and the discovery of evidence to determine how closely the discovery of evidence followed the unlawful police action; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the
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official misconduct. In this case, an arrest warrant discovered after the illegal stop dissipated the taint after consideration of each of these factors. ●
Attenuation Doctrine: Regarding the three factors articulated in Brown v. Illinois
, first, a court looks to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, the court considers the presence of intervening circumstances. Third, and particularly significant, the court examines the purpose and flagrancy of the official misconduct
Chapter 17 - Right to Counsel
a.
Belts v. Brady, 316 US 455. Under this precedent, was the State required to provide counsel to indigent defendants in all cases? If not, when would the state be required to do so? How was the court required to make this determination?
●
Due process of law demands that every in criminal case
●
There are certain circumstances, special circumstances rule, 14th amendment due process is denied and defendant is not afforded 6th amendment right ●
This is a mess but basically this was the case that said that the 14th amendment did not make the right to counsel applicable to the state only have to appoint counsel if incompetent or special circumstances or whatever b.
Gideon v. Wainwright, 372 US 335. The 6th amendment right to counsel is applicable to the states through the 14th amendment in non-capital cases. The right to counsel is fundamental to a fair trial. A person is not denied counsel because of poverty. Every defendant stands equal before the law. c.
Scott v. Illinois, 440 US 367. When is the state now required to provide counsel to indigent defendants? ●
Whether right to counsel if extended to person who while is
●
6th amendment only requires that no criminal defendant be subjected to incarceration unless have
counsel- so drew actual imprisonment line not threat of imprisonment for right to counsel Chapter 18 - Interrogations - Due Process Voluntariness Test
a.
Ashcraft v. State of Tennessee, 322 US 143. When is a statement given by a suspect considered compelled?
●
Whether a statement is voluntary when given to a police officer after 36 hours of continuous questioning without rest or break ●
Statement was not voluntary under the circumstances b.
Spano v. NY, 360 US 315. A statement by a suspect is considered involuntary and violative of due process when? Does the intent of the officers in conducting the questioning factor into the court’s consideration of voluntariness? Does it matter whether
the statements was obtained before or after indictment? ●
Whether after indictment and before trial the government can interrogate in secret after asked for attorney
●
No cannot do dat
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c.
Colorado v. Connely, 479 US 157. Coerce police activity is a necessary predicate to a finding that a confession is not voluntary within the meaning of the DPC. ●
Coercive police activity is a necessary predicate to a finding that a confession is not voluntary within the of the DPC
●
A defendant's mental health condition is one factor to be considered in determining whether a person is susceptible to police coercion, but that condition alone will not render a confession involuntary
●
So mental health condition alone does not render a statement/confession involuntary d.
Lisenba v. CA, 314 US 219. What is the purpose of exclusionary rule? If a violation of due process is found, what is the primary purpose of exclusion of evidence?
●
Whether a confession is involuntary when it is the result of physical violence, threats and other coercive means
●
Yes but the statement here were not coerced Chapter 19 - Interrogations - 6th Amendment Right to Counsel
a.
Messiah v. US, 377 US 201. May the police use a confidential informant to obtain a statement from a defendant after indictment. Why or why not? ●
Statements are per se involuntary if police illicit them after defendant had been indicted and had retained counsel but was out on bond ●
Basically had accomplice wear a wire and talk to defendant ●
Right to counsel had attached so any statement is rendered per se involuntary without counsel present unless defendant waives (knowingly) b.
Escobedo v. Illinois, 378 US 478. If a defendant is denied his request for counsel prior to
indictment, were his 6th amendment rights violated? Why or why not? Note later cases changed this answer. ●
When legal process switches from investigatory to accusatory- when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate and under the circumstances here the accused must be permitted to consult with a lawyer c.
Brewer v. Williams, 430 US 387. When does the right to counsel attach? When are the questions of police officers considered to be a violation of a defendant’s right to counsel?
If the defendant’s right to counsel has been allegedly violated, is there any way that the statement could be admitted into evidence during the state’s case in chief? Judicial proceedings clearly already initiated against Williams at time of transportation. No dispute. Detective knew represented and purposely said out to get information while neither lawyer was present.
●
Christian burial speech here the officers did not specifically question the suspect, but spoke to him about how the parents of the missing child should have the ability to give their child a proper christian burial. As a result, the suspect showed the officers where the body could be found
●
Rule: a statement calculated to elicit an incriminating response is tantamount to interrogation d.
US. Henry, 447 US 264. Here, police officers placed a confidential informant in a cell with the defendant to obtain a statement after indictment. Did this violate the defendant’s
right to counsel? Why or why not? What three factors were relied upon by the court in
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considering whether the defendant's statement should be admitted under these circumstances? ●
The Court held that defendant's statements to a government informant should not have been admitted at trial because by intentionally creating a situation likely to induce the defendant to make incriminating statements without the assistance of counsel, the government had violated defendant's Sixth Amendment right to counsel. The Court held that defendant's Sixth Amendment
right to counsel had attached at the time he made the statements. Further, the Court held that the government's specific mention of defendant to the undercover informant, who was paid on a contingency fee basis, constituted the type of affirmative steps to secure incriminating information from defendant outside the presence of his counsel prohibited by the Sixth Amendment.
e.
Kuhlmann v. Wilson, 506 US 436. Here again, the police placed a confidential informant in a cell with defendant after indictment. Why was the result of this case different than Henry? ●
The △ must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks
○
A △ does not make out a violation of that right simply by showing that an informant, either thru prior arrangement or voluntarily, reported his incriminating statements to the police. ●
While it seems the visit from the brother, instead of a conversation with the CI, was the catalyst for Respondent’s confession to the CI, the State laid the groundwork for the confession by assigning the specific cell and designating a secret informant to develop a relationship with R. Holding & Reasoning: R. right to counsel was NOT
violated in this case because the Government did nothing to “deliberately elicit” the incriminating statements from the R.
●
Active participation v. passive listening- this is the “difference” between Henry and Kulman. If someone is actively participating then more like Henry and that’s not ok, if passive listening then more like Kulman and ok - burden is on the defendant Chapter 20 - Interrogations - The Miranda Rule
a.
Miranda v. Arizona, 384 US 436. What was the prophylactic rule created by this case? Why was there a need for such a rule? What is the standard for proving that there has been a waiver of rights under Miranda? Colorado v. Connelly
●
You know it you love it
●
5 rights- waiver needs to be knowingly and intelligent
●
BITCH YOU BETTER USE THE TERM “MIRANDA WARNINGS” NOT RIGHTS b.
Berkermer v. McCarty, 468 US 420. An individual is stopped by the police. The police believe that the defendant was driving under the influence of alcohol. Are Miranda warnings required prior to any questioning? Why or why not? If not, when would Miranda
warnings be required?
●
the Supreme Court held because the initial stop of respondent's car, by itself, did not render respondent in custody, respondent was not entitled to a recitation of constitutional rights. However, after respondent was arrested, any statements made were inadmissible against him without a reading of his constitutional rights.
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c.
J.D.B v. North Carolina, 131 S.Ct. 2394. Is a child’s age relevant in determining whether a child is in custody and thus triggering the requirement for Miranda warnings? What is the analysis that must be used? Is this a subjective or objective inquiry? ●
Court ultimately decided that JDB age should be taken into account when deciding whether or not
he was in custody. The case was remanded to decide if he was in custody
●
The courts reasoning was that children have a different way of understanding the world than adults. Children lack the capacity to understand events the same way an adult would, and therefore their age and lack of mature thinking must be taken into account. Police and courts must
examine all of the circumstances surrounding the interrogation including those that would have affected how a reasonable person would perceive his or her freedom to leave. In custody when people are under pressure, they may admit to crimes that they never committed. The court found that children and teenagers have a higher chance of reacting to this stress than adults would. The Meaning of Interrogation
d.
When is a suspect under interrogation within the meaning of Miranda? Are the police officer’s actions relevant in this inquiry? e.
Arizona v.Mauro, 481 US 250. The mere possibility that a suspect may make an incriminating statement is not enough to the Innis standard of any words or actions of police officers that the officers knew or should have known would be likely to elicit an incriminating response. Here the officers did not ask any questions, and there was no evidence that the police had arranged for a conversation between the defendant and his wife for the purpose of obtaining incriminating statements. ●
The mere possibility that the words or actions of police officers might elicit an incriminating response is insufficient to meet the RI v. Innis standard
f.
Illinois v. Perkins, 496 US 292. The police place an undercover officer and a confidential informant into a cell with the defendant prior to indictment. Are Miranda warnings required? Why or why not? ●
The prisoner claimed that the statements were properly excluded because he had not been given Miranda warnings by the undercover agent. The State alleged that the statements were voluntary and not coerced, and that Miranda warnings were not required when an undercover agent was asking questions that could elicit an incriminating response. The court held that Miranda warnings were not required when the suspect was unaware that he was speaking to a law enforcement officer and gave a voluntary statement. The court found that conversations between suspects and undercover agents did not implicate the concerns underlying Miranda. The essential
ingredients of a police-dominated atmosphere and compulsion were not present when an incarcerated person spoke freely to someone he believed to be a fellow inmate.
●
Coercion was to be determined from the perspective of the suspect. Ploys to mislead a suspect or lull him into a false sense of security that did not rise to the level of compulsion or coercion to speak were not within the concerns of Miranda warnings. Miranda was not meant to protect suspects from boasting about their criminal activities.
Can Police Try Again After a Suspect Invokes Miranda?
g.
Michigan v. Mosley, 423 US 96. A police officer provides Miranda warnings to the suspect. He invokes his right to remain silent and no questions are asked. Subsequently,
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another officer gives Miranda warnings, seeking to question the suspect about a case unrelated to the first. Is the statement made by the suspect after the second Miranda warnings are given admissible? Why or why not? ●
Defendant was arrested in connection with the investigation of robberies. After being advised of his rights, defendant stated that he did not want to talk about the robberies. Defendant was thereafter questioned at another police station about a homicide and confessed to the murder. The Supreme Court vacated and remanded the lower court's decision because the right to remain silent
encompassed within the Miranda rights was not a right to permanently remain silent, but was a right that had to be scrupulously honored by the police. The Court concluded that when the questioning was for different crimes, by a different police officer, in a different station, after an extended period without questioning, the request to remain silent had been scrupulously honored. The police scrupulously honored defendant's request to remain silent about the subject of questioning and thereafter questioned him about other crimes for which he did not request to remain silent.
●
Invoked right to remain silent during first interrogation
●
Second interrogation waived his right to remain silent
●
If you invoke your rights and then shortly after given additional miranda warnings and then waived the waiver is valid and statements are admissible ●
This is how much time is enough time case- questioning was regarding two separate offenses and there was a break in time and two different detectives so said it was ok
●
Totality of the circumstances h.
Edwards v. Arizona, 451 US 477. Once the right to counsel is invoked, when is that right relinquished making the defendant subject to further questioning? ●
A waiver of the right to counsel must be voluntary, and must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege ●
Invoked right to counsel, not given opportunity to consult counsel, given miranda again and then “waives” - not cool
●
Statements not admissible when accused invoked right to counsel waiver cannot be shown by accused responding to further questions- accused must initiate the communications with the police ●
When accused has expressed his desire to deal with police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges or conversation with the police i.
Davis v. US, 512 US 452. When a suspect makes questionable statements regarding counsel, leaving the officers unsure about whether the suspect requested counsel, must questioning cease until counsel is made available? ●
After a knowing waiver of rights after miranda, officers can continue questioning until accused clearly and unequivocally asks for counsel
●
Might’ve or maybe is not enough for police to have to cease interrogation
●
Reasonable officer objective standard
●
Unambiguous such that reasonable officer would understand it to be a request for an attorney j.
Minnick v. Mississippi, 498 US 146. Note a. When is the 5th amendment right to counsel
terminated? ●
The 5th amendment protection provided upon the invocation of the right to counsel is not terminated or suspended by consultation with counsel. Officers may not reinitiate interrogation without counsel present, whether or not the accuse has consulted with his attorney
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k.
Oregon v. Bradshaw, 462 US 1039. In a plurality decision, the Court defined initiation for
purposes of the Edwards rule as whether a statement or question by the suspect indicates a desire to open up more generalized discussion relating to the investigation. Routine questions do not constitute initiation. Asking an officer “whats going to happen to me now” constituted initiation. ●
The term “initiation” for purposes of the Edwards rule was clarified
●
Routine questions do not constitute initiation. However asking an officer what's going to happen to me now constitutes initiation/reinitiation
●
“Where do you live, do you have a DL” not going to be enough for reinitiation l.
Maryland v. Shatzer, 559 US 98. Does a break in custody overcome the Ewards presumption regarding the constitution of the right to counsel? If there a bright line rule for determining when the Edwards presumption ends? ●
There is no violation of the right to counsel when the police question a suspect who initially requested counsel, and re-interrogate the suspect after a break in custody of a duration that is sufficient to dispel the coercive effects of custodial interrogation
●
The presumption of involuntary interrogation under Edwards is not longer applicable if police interrogation is reinitiated after 14 days
Waiver of Miranda Rights
m.
North Carolina v. Butler, 441 US 369. Is an explicit waiver of the right to counsel required
under Miranda? How will an express waiver of the right to counsel be considered? Can the waiver of the right to counsel ever be inferred? If so, what does the court consider in making this determination? Can silence constitute a waiver? ●
While an express waiver of the right to counsel is usually strong proof of the validity of that waiver, it is neither necessary nor sufficient to establish a waiver
●
The question is whether the defendant knowingly and voluntarily waived his rights
●
The court must presume that there was no waiver
●
The burden is on the prosecution to overcome this presumption
●
Waiver can be inferred from the action and words of the person being interrogated ●
Mere silence is not enough but silence + actions can be enough for implied waiver
n.
Moran v. Burbine, 475 US 412. What is the two prong test that is used to determine the voluntariness of a waiver of rights under Miranda? If a defendant’s atty is refused entry into a police interrogation of a defendant, can this be used in determining whether the waiver of rights was voluntary? ●
Two part inquiry to determine voluntariness of waiver
●
Whether the waiver was free of coercion, deception or intimidation and
●
Was the suspect aware of the nature of the right and the consequences of abandoning it ●
Esceovedo said 6th amendment rights attach when shifts from investigatory to accusatory ○
Esceovedo is still good law as it pertains to 5th amendment but not 6th amendment ○
Now 6th amendment rights attach at the commencement of adversarial proceedings o.
Berghuis v. Thompkins, 560 US 370. If a defendant makes a reference to not wanting to talk with the police, which may or may not be an invocation of the right to remain silent, must questioning cease? Can a waiver of the right to remain silent be made implicitly? Must a waiver of the right to remain silent be sought prior to questioning?
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●
After miranda warnings, neither a rights invocation nor an express waiver is required to commence interrogation if the suspect understands his rights and waives those rights by making an uncoerced statement to the police p.
Colorado v. Spring, 479 US 564. In determining whether a decision to waive a 5th amendment privilege against self incrimination is voluntary, is it relevant for the suspect to have been made aware of all crimes about which he may be questioned? ●
Spring argued because he did not know he was being questioned about the murder there was no waiver ●
Totality of the circumstances ●
"Law enforcement officers have no duty under Miranda to inform a person in custody of all charges being investigated prior to questioning him.
●
Spring indicated that he understood the enumerated rights and signed a written form expressing his intention to waive his Fifth Amendment privilege. The trial court specifically found that "there was no element of duress or coercion used to induce Spring's statements [on March 30, 1978]
●
we think that the trial court was indisputably correct in finding that Spring's waiver was made knowingly and intelligently within the meaning of Miranda q.
New York v. Quarles, 467 US 649. What is the public safety exception to Miranda? Is the
analysis of whether the public safety exception an objective or subjective one? ●
The Court held that there was a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers could be admitted into evidence, and that the availability of that exception did not depend upon the motivation of the individual officers involved.
●
Public safety applied because there was a gun R discarded so danger to public if gets into wrong hands
●
Objective inquiry
r.
Chavez v. Martinez, 538 US 760. Is there a violation of the 5th amendment when a statement is taken without Miranda warnings and the statement is not used against the suspect in a criminal case? Under what circumstances would there be a due process violation where a police officer questions a suspect who is a hospital patient? ●
The United States Supreme Court held that the officer was entitled to qualified immunity since the officer committed no violation of respondent's constitutional rights. A plurality of the court found that respondent was not compelled to be a witness against himself, and the circumstances warranted the intense questioning to preserve respondent's version of events. A majority of the Court agreed, however, that additional consideration was necessary to address whether respondent could pursue a claim of liability for a substantive due process violation.
s.
Dickerson v. US. is miranda still good law? Why or why not?
●
the court reversed, finding that Miranda was a constitutional decision of the court, and therefore could not be in effect overruled by an Act of Congress. Further, following the principles of stare decisis, the court declined to overrule Miranda itself. The court held that Miranda and its progeny
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governed the admissibility of statements made during custodial interrogation in both state and federal courts.
t.
US v. Patane, 542 US 630. Will the failure to give a suspect miranda warnings require the suppression of physical evidence which is obtained as a result of the unwarned statement? ●
The self incrimination clause cannot be violated by the admission of non-testimonial evidence obtained as the result of voluntary statements ●
Fruit of the poisonous tree doctrine does not apply to physical evidence if there’s a violation of miranda - so if a statement is made without miranda and that statement leads to popo finding incriminating evidence it is not tainted I guess?
u.
Oregon v. Elstad, 470 US 298. If an officer obtains a statement without first providing proper miranda warnings, will a subsequent statement made after miranda warnings be tainted and inadmissible? Can the psychological impact of letting the cat out of the bag be considered in making this determination? ●
The def made incriminating statements without receiving Miranda warnings. After being advised of his rights, he waived them and signed a confession. The SC held that the 5th amendment did not require suppression of the written confession because of the earlier unwarned confession ●
Miranda warnings would cure any taint provided the original statement was voluntarily and freely
given v.
Missouri v. Seibert, 542 US 600. Plurality opinion. If the police deliberately question a suspect without providing miranda warnings, obtain a statement, subsequently provide miranda warnings and then question the suspect again to repeat the statement, is miranda violated? As this was a plurality opinion, what were the effects of the concurring
opinion of Breyer and Kennedy? ●
The police tactic of question first and then giving miranda warnings after a confession thwarts the
purpose of the warnings and violates the constitutional requirements protected by miranda
●
Plurality opinion go with the rule from kennedy’s opinion
w.
Harris v. NY, 401 US 222. Can a def’s statement taken in violation of Miranda be used to
impeach the def’s testimony? ●
An otherwise inadmissible statement under Miranda that bars the use of the statement in the prosecution’s case in chief can be subsequently be used for impeachment of the defendant
x.
James v. Illinois, 493 US 307. Can a def’s statement taken in violation of Miranda be used to impeach the testimony of other defense witnesses? ●
A statement rendered inadmissible statement due to a miranda violation may not used to impeach the credibility of defense witnesses ●
Dissent: this is a license for “perjury by proxy” ●
This case said the impeachment exception only applies to the defendant and not any defense witness
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●
If you know your client is about to commit perjury then say to the court “I am going to put my client on the stand but I am not going to ask them any questions” - this is how you alert the court to the fact that you believe client is about to commit perjury Chapter 21 - Lineups and Other Pretrial Identification Procedures a.
United States v. Wade. What will be the effect of a pre-trial lineup conducted without the notification or presence of defense counsel after the right to counsel attaches? What must the state establish to permit the use of such an identification at trial?
●
Requiring an accused to utter words which were spoken during the commission of the crime isn't testimonial as it does not require the accused to “speak his guilt”
●
A post indictment lineup is a critical stage of the proceedings due to the grave potential for prejudice which may not be capable of reconstruction at trial. Both an accused and counsel are entitled to notice of the lineup and counsel’s presence is required absent an intelligent waiver
●
There must be clear and convincing evidence that an in-court ID was not based on an improper lineup ID ●
Post indictment lineup counsel has a right to be there and be notified, defendant has right to be notified b.
Kirby v. Illinois. What will be the effect of a pre-trial lineup conducted without the notification or presence of defense counsel before the right to counsel attaches?
●
The wade-gilbert per se exclusionary rule for ID based upon a police station show up does not extend to situations which occur before adversarial proceedings have commenced
●
However the 5th and 4th amendments forbid unnecessarily suggestive IDs ●
Show-up: is this type of situation unnecessarily subjective
○
This is when the victim and defendant see each other either at the scene or like the station
○
“Unnecessarily subjective” : “conductive to irreparable mistaken identification”
○
If out of court ID is suppressed (bc unnecessarily subjective) then in court ID will be suppressed as well unless it can be shown that the in court ID was independent of the unnecessarily suggestive out of court ID
c.
Manson v. Brathwaite. What is a show up? What is the test used by the court in determining whether a show up violates due process? What are the factors that the court
must use in making this determination, and what must they be weighted against?
●
Neil v. Biggers
factors to be considered to determine whether ID testimony should be admitted:
1.
Opportunity of the witness to view the criminal at the time of the crime
2.
The witness’ degree of attention
3.
The accuracy of the witness’ prior description of the criminal
4.
The level of certainty demonstrated at the confrontation
5.
The time between the crime and the confrontation d.
Perry v. New Hampshire. If a suggestive pretrial identification of a defendant is made without the involvement of law-enforcement, must a court conduct a hearing to determine whether the identification and its fruits should be suppressed? Why or why not?
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●
The reliability of an ID does not, without the taint of improper state action, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess
its creditworthiness ●
Jurors find eyewitness testimony to be unusually powerful and is the single greatest cause of wrongful convictions
●
76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misID I.
Waiver of Right to Counsel under Miranda (NC v. Butler) - all include some kind of voluntariness
A.
Knowing waiver: the suspect must be aware of the nature of the right and the consequences of abandoning it.
B.
Waiver must be voluntary (free from coercion, deception or intimidation).
Must be established by a preponderance. Court must consider the totality of the circumstances in making these determination. And making these determinations consider the background, experience, and conduct of the suspect.
II.
Waiver of Right to Remain Silent Under Miranda (Moran . Burbine, Berghuis v. Thompkins)
A.
Waiver is free from coercion, deception or intimidation a.k.a. voluntary.
B.
Suspect is aware of the nature of the right and the consequences of abandoning it.
Must be established by a preponderance. The court must consider the totality of the circumstances in making these determinations taking into account the background, experience, and conduct of the suspect.
III.
Waiver of Rights under Miranda after a prior unwarranted statement (Oregon v. Elstad, Missouri v. Siebert)
A.
Was the statement knowingly made. Suspect is aware of the nature of the right and the consequences of abandoning it.
B.
Statement was voluntary (free from coercion, deception, or intimidation).
Actual coercion must not be present. Miranda warnings cure the taint of an unwarned statement. Whether the post Miranda statement is admissible turns on whether the statement was both knowing and voluntary. This must be established by a preponderance. The court must consider the totality of the circumstances and making these determination considering the background, experience, and conduct of the suspect.
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