Crim Procedure - Investigations

Exclusionary Rule

Evidence seized in violations of 4-A cannot be used against the defendant.

• Weeks: introduces it and limits it from the states

• Mapp: Incorporated the exclusionary rule into the states

4th amendment

right of the people to be secure in their persons, houses, papers & effects against unreasonable searches and seizures shall NOT be violated

• 14^th amendment incorporated 4^th Amendment into states

• Protects against government searches, not private individuals

Katz 4A violation

when a government search violates a reasonable expectation of privacy

Harlan 2 Part test

(1)     Did the person have an actual expectation of privacy (subjective) AND

(2)     Is the expectation one that society is prepared to recognize as reasonable (objective)

Curtilage 4 factor test

(1)     Proximity of area to home

(2)     Whether it is within an enclosure surrounding the home

(3)     Use to which area is put

(4)     Steps taken to protect from view of passersby

• Ariel Surveillance: No search if within flight regulations

• Garbage Search: Not a search

•    Pole Camera: not a search

•   Sense- Enhancing Tech: Is a search if tech is not in general use (considered a physical intrusion)

• GPS tracking: Is a search

Search Test

Jones + Katz (Unless there’s a carpenter argument)

is a search when: 

• Government contains information by physical intrusion on persons, papers, houses or effects OR

• When the government conduct interferes with an actual (subjective) & reasonable expectations of privacy (objective)

Third Party Doctrine

a person has no reasonable expectation of privacy in information he voluntarily turns over to third parties

• However, to the extent that we need to:

  • Protect privacies of life against arbitrary power

  • Place obstacles in the way of too permeating police surveillance

• This does NOT apply to everything. I could be so revealing about your life that the government needs a warrant to access it (like CSLI).

Seizure of Property

occurs when there is some meaningful interference with an individual’s possessory interest in that property”. (Karo)

• What may be seized

(1)     Contraband (drugs)

(2)     Fruit of crime (Money from Drug deals)

(3)     Intrusmentalities of crime (drug spoon)

(4)     “Mere evidence” (Blood stained shirt)

• Law enforcement officers may seize what they have probable cause to believe is criminal evidence.

Probable Cause = 

 Fair probability

• Not probable: something less than 50% is generally enough

• Changes depending on what's at stake (how big and how serious)

PC to arrest exists when:

there are specific facts and circumstances that would lead a reasonable officer to believe that a crime has been committed and that the person to be arrested committed it.

PC for a search exists

when there are specific facts and circumstances that would lead a reasonable officer to believe that evidence of a crime will be found in the place to be searched.

Totality of the circumstances test

Make a practical, common-sense decision whether, given all the circumstances, fair probability evidence will be found in a particular place.

Frank’s Hearing

Defendant makes substantial preliminary showing of a false statement (knowingly and intentionally, or with reckless disregard for the truth) included in affidavit.

•  Defendant requests hearing that eliminates the lies from the warrant and can therefore eliminate probable cause if no longer PC without the lies.

• if there is still PC after the lies then they might be able to fix it.

Arrest Warrants

• Barring exigent circumstances, need a warrant to enter home.

• Need a warrant to arrest someone inside the home and reason to believe they are inside the home.

Search Warrants Elements

•  P.C.

• Supported by oath or affirmation

• Particularity

  •  Must describe things to be searched/seized, no general warrants

  • Nothing should be left to discretion of officer with the warrant

• Neutral/ detached magistrate

Knock and Announce standard for not having to do it

Knocking would be:

• Dangerous

• Futile, OR

• Undermine investigation

• Consider what is known to the officer at the time

Execution of a search warrant

•  Police may reasonably restrict movement of persons present at location to be searched

• Police may reasonably break property in executing a warrant

•  Police may only search containers that could possibly hold the items specified in the warrant

• A warrant granting authority to search a location does not include authority to search persons at that location

Warrant Clause and Exigent Circumstances

• A warrant intrusion may be justified by

  •  Hot pursuit of fleeing felon

  •  Imminent destruction of evidence

  •  Need to prevent escape

  •  Risk to police/ others

  • THIS IS NOT AN EXHAUSTIVE LIST

• Rules applies when police do not gain entry by 4A (actual or threatened)

• Exigent circumstances can be generated by police

Search Incident to Arrest

Police may search person and area within his immediate reach

recent automobile occupants under SIA

• Officers can search the passenger compartment of a vehicle only when:

  •  (1) The arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search OR

  •  (2) Reasonable to believe evidence of the crime of arrest might be inside the vehicle.

pre textual stops

•  Do not violate 4^th amendment

• Officers’ subjective motives cannot invalidate objectively justifiable behavior under 4A

Cars and Containers

• Can search car because its movability is considered an exigent circumstance (Chambers)

  •  Exigent Circumstances: (1) if the vehicle is traveling on public roads, (2) if there is probable cause, (3) if the occupants are alerted and may move the car to avoid detection.

Acevedo Rule PC to search a car

Where police have PC to search a car without a warrant under the automobile exception, they may also search any container found in the car search that is large enough to hold the evidence they are looking for.

Automobile Exception

Allows police to search for an entire car and containers within the car if (1) the car is operable and (2) police have probable cause to believe contraband is inside.

• Once you have the evidence that gave the probable cause, the search stops there unless you can get more probable cause to continue the search

Plain View and Touch Doctrine

• Seizure permitted, absent warrant authorizing that  seizure, when:

  • 1.Officer did not violate 4th Am in arriving at location from which evidence is in plain view (because search warrant or exception);

  •  2.Incriminating character must be immediately apparent;

  • 3.Officer must have lawful right to access the object itself

  • 4.(Need not be inadvertent)

• Arguably not its own exception; plain view alone is never sufficient to justify warrantless search for evidence

• Includes all senses not just view/touch

Consent

• Consent justifies a search without a warrant, and even one that is without probable cause;

• consent must be voluntary, but need not be knowing; and

• burden of proof is on government to prove voluntary consent (but need not prove knowledge of right to refuse consent)

Consent and Co-occupants

• A physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him

• BUT: co-occupants consent to search common area can be valid consent against non-present defendant’s subsequent objection

• Turns on common understanding od authority to consent

Consent is valid where police reasonably believe the person consenting to the search has authority to do so

Terry

If there is a strong interest in police safety and minimal intrusion

Dual inquiry for reasonable analysis under Terry

1.        Is officer’s action justified as inception (starting point)?

2.        Was action reasonably related in scope to the circumstances which justified the inference in the first place?

• looking for an articulable set of facts

Seizure

1. Must be an intentional action by the police that is either:

A. a physical force; or

  B. Show of authority

      i. that constitutes the submission (Submission can be minimal)

Seizure Test

A person seized only if, in view of totality of the circumstances surrounding the incident, a reasonable person would have believed that he was NOT free to leave

Reasonable Suspicion

• If law enforcement has reasonable suspicion to suspect a person is committing, or planning to commit, a crime, they may stop that person to investigate further (Terry Stop).

•   If law enforcement is conducting a legitimate Terry Stop (to investigate a crime), and they reasonably suspect the person begin stopped may be armed, they may conduct a FRISK for weapons

Is a Terry stop able to be performed on vehicles?

yes. AS LONG AS there is reasonable suspicion.

Special Needs Reasonableness

• When a perceived need beyond the normal need for criminal law enforcement makes the warrant and/or probable cause requirements of the 4th Amendment impracticable or irrelevant.

• Subset of searches that do not need warrant because of special need that would lead one to expect they have a smaller expectation of privacy

Temporary v, Permanent in Special Needs Searches

• Temporary is unreasonable per se whenever the police are given discretion (must decide they are going to stop all black cars, or every third car or something).

•  Permanant are almost always okay

Reasonableness is determined by balancing:

o   State’s interest

o   Effectiveness

o   Level of privacy intrusion

Standing

You have to be the one who’s rights were violatedin order to challenge a search or seizure in court.

fruit of the poisonous tree exclusions:

Independent Source Doctrine, Inevitable Discovery Doctrine, and Attenuation Doctrine.

independent source doctrine

• allows introduction of evidence discovered during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality

  • 2 ways to show: (1) if the lawful means of getting the evidence (i.e getting the warrant) was tainted by the information illegally obtained; (2) if the decision to seek the warrant itself was prompted by what was seen or obtained during the illegal search (decision to get the warrant would not have occurred BUT FOR the illegal search

Inevitable Discovery Doctrine

• evidence that is fruit of a poisonous tree will still be admissible if the prosecution can establish that it would have inevitably and legally obtained it anyways

  • Needs to be actually happening and not a hypothetical/about to happen

Attenuation Doctrine

at some point the fruit rolls so far from the tree that it is no longer poisonous

• Whether the taint has dissipated

  • The length of time elapsed/distance

  • Flagrancy of the initial misconduct

  • Intervening causes for seizing the fruit

  •  Whether defendant’s own free will resulted in the seizure of the fruit

• Ultimately turns in the perceived costs and benefits of exclusion

  • No bright line test - Fact specific determination

When does the exclusionary rule not apply when the police act under a warrant that is invalid for lack of probable cause 

 if the police acted in objectively.

4 specific times when reliance on WARRANT is NOT reasonable

• warrant is based on knowingly or recklessly false information (Franks)

• When magistrate abandoned judicial role (is no longer neutral and detached) [magistrate can’t act as a rubber stamp]

• When the warrant affidavit is so lacking in probable cause that it would be unreasonable to rely on a resulting warrant

• When the warrant on its face is clearly deficient (not particular enough re: person/place)

Balancing Test to justify exclusionary rule under the 4th amendment

Ultimately turns on perceived costs and benefits of exclusion

• with knock and announce violations, the costs of exclusion are significant while the benefits are minimal 

4 scenarios where the Exclusionary rule is ONLY triggered if:

1.  Police conduct is sufficiently deliberate that exclusions can meaningfully deter AND the degree of deterrence is worth the cost of exclusion

2. Can deter deliberate, reckless, or grossly negligent conduct

3. Can deter systemic negligence

4. More difficult to see negligence meeting these criteria (see footnote 4; negligence can be deterred to a lesser degree, but calculus of costs and benefits differs with mere negligence)

during what type of conviction would amount to the deprivation of life or liberty without due process of law

a conviction that was secured in part by a confession secured through torture

• was the subject’s will overborne?

  • Consider wrongfulness of police conduct and suspect’s characteristics

Miranda Rule

Statements arising out of custodial interrogation are not admissible unless the government demonstrates procedural safeguards were followed

• no custodial interrogation if police are undercover

Custody

reasonable person in suspect’s position would not feel freedom curtailed to degree associated with formal arrest (stop ≠ custody)

• No violation if no custody 

interrogation

Questioning, or words/actions police should know are reasonably likely to elicit incriminating response

Public Safety Exception

If there is an objectively reasonable need to protect the public or police then it is admissible

Exception to Miranda

booking questions suspects do not need to be read their rights.

Subsequent confessions with Miranda warnings 

subsequent confessions won’t necessarily be suppressed unless mIranda warnings are not effective when eventually given. 

• First Miranda violation does not require suppressing 2^nd statement knowingly and voluntarily made

What cannot happen once the suspect invokes right to counsel

1. they cannot waive right based on police-initiated conversation AND

2. Cannot be subject to further interrogation until counsel provided

• UNLESS the suspect initiates the communication 

How can Miranda rights be invoked

by an unambiguous statement

Waiver of Miranda rights

cannot be presumed from the mere fact that warnings were given and the suspect eventually made a statement

2 things that prosecution must show for waiver of Miranda

by a preponderance of the evidence, that waiver was:

1.  Voluntary = free and deliberate choice – not result of coercion, intimidation, deception

   1. The prosecution can meet this burden by showing that the warning was given, that the warning was understood, and statement was voluntary (i.e. not the result of coercion)

2. Knowing = full awareness of the right to remain silent and consequences of waiving right

• warning + uncoerced statement ➡  not sufficient to establish waiver

• warning + uncoerced statement +  warning understood by accused ➡ waiver presumed

If the defendant invokes her right to silence, all questions must cease, BUT

• It need not stop forever.

• Police must terminate present interrogation.

• Can begin a new interrogation later with a new Miranda warning.

• “Later” not defined; must be truly distinct session separated by some passage of time (suggest hours minimum; overnight better).

  • Merely remaining silent is ambiguous.

  • The defendant must state, unambiguously, that she is invoking her right to silence

Massiah Rule

Sixth Amendment right to counsel violated when a defendant’s statement is used against him and that statement was “deliberately elicited” by law enforcement in the absence of his counsel

• Does not matter if they are knowingly talking to law enforcement or not

• Law enforcement cannot go around a lawyer knowing they had a lawyer

Attachment of the Massiah rule

attaches after the initiation of formal judicial proceedings

• Applies at the start of adversarial proceedings based on a charge, and throughout the prosecution

•  Judicial proceedings = triggering condition for the right.

Deliberate elicitation

Police acts that lead to a statement by the defendant trigger 6^th Amendment concerns if the acts amount to deliberate elicitation by the police

• Express questioning, or any action that is intended to garner a response from the defendant

• The officer’s subjective mindset matters

Waiver of the 6th Amendment must be

knowingly and voluntary.

•  Is validly waived if the accused knowingly and intelligently relinquishes it, and Miranda warnings suffice to inform defendant of right to counsel

•  Burden on the prosecution to prove the defendant was aware he had a right to silence, was aware of the consequences of waiving that right, and voluntarily waived

Exclusions to the 6th amendment

• Exclude statements

• Exclude fruit

  • Fruits = any statements or evidence deliberately elicited from the defendant without counsel present must be suppressed

When NOT to exclude under the 6th amendment

if offered for impeachment purposes