Criminal Investigations

Burdeau v. McDowell

4th Amendment protection extends only to actions undertaken by government officials or those acting at their direction

Elements for if a private party gov’t agent/instrument

• 1.) the government knew and acquiesced in the intrusive conduct;

• 2.) the citizen intended to assist law enforcement or instead acted to further their own purposes; 

• 3.) If the citizen acted at the government’s request.

Search

intrusions upon a person’s privacy or protected property

Seizure

control by the government over a person or thing or the application of force to a person with intent to restrain

U.S. v. Mendenhall

Seizure: the police’s conduct and surrounding circumstances communicate to a reasonable person that they are not free to ignore the police presence and leave 

• Factors: 

  • Presence of handcuffs/weapons

  • Use of forceful language

  • Physical contact or restraint

For a seizure to have occured, does a person have to actually submit to police show of authority? Objectivley? Subjectivley?

Yes, yes to both

Olmstead

• Applied a property rights respass theory to protect against phyical intrusions

• the fourth amendment protected "persons, houses, papers, and effects"

• overturned by Katz

United States v. Jones

• Might be a return to trespass theory for the 4th

• The physical attachment of GPS tracking device, coupled with the intent to obtain information about his movements, amounted to a Fourth Amendment search

Katz v. United States

• expanded 4th amendment protections to include things people want to keep private even if its in a place accessible to the public

• Test: Requires both a subjective and objective (societal recognition) reasonable expectation of privacy

In what/where can people have a reasonable expectation of privacy?

• home

• body

• communications

Expectation of prinacy in a house?

 Full protections of 4th amendment, police must have warrant

Curtilage

• considered part of the dwelling of the house

• Dunn Factors:

  • Distance: from the house

  • Enclosure: if it’s within the surrounding of the home

  • Function: the nature of its usage 

  • Protection: steps taken by the resident to protect it from view

Where do people have no reasonable expectation of privacy?

• Open fields

• Held out to public

• Third party

Open Fields

• land distant from the home, police can enter without a warrant (contingent on where the living space is)

• Observations made with the naked eye aren’t protected by the 4th 

• Ex: flyover by a helicopter with a spotlight, not protected by the 4th

Held out to the public

Public spaces where people’s actions, content, and possessions can be seen or heard

Ex: places, voice, handwriting, smells, etc.

Is there an expecation of privacy in your trash?

Federal: no expectation of privacy

Oregon: expectation of privacy

United v. Kyllo

thermal imaging device is a violation of the 4th amendment, it’s a special instrument so they needed a warrant 

Third Party Doctrine

• people who voluntarily give information to third parties have "no reasonable expectation of privacy.

• A customer has no reasonable expectation of privacy in:

  • checks and deposit slips given to the bank - United States v. Miller 

  • phone numbers that were dialed - Smith v. Maryland *

    • Don’t need a warrant for pen registers but do for phone calls (wiretap) and text messages

  • email records - United States v. Forrester

Mosaic Theory

People have an expectation of privacy in small peices of information that they might not normally have them in if those small pieces put together a bigger image in the aggregate

Carpenter v. United States

Carpenter v. United States

• Government conducting search on historical cell phone records without a warrant to connect people to store robberies through cell phone pings

  • Holding:  violation of the 4th amendment

• mosiac theory

Do you need a warrant for wiretaps?

• Yes, conversations are protected by 4th amendment, so need a warrant

• Berger v. New York

Requirements for Wiretaps

• Requirements: 

  • 1.) probable cause

  • 2.) showing of necessity

    • has to be the only way to obtain the information, last resort

  • 3.) Department of Justice Office of Enforcement Operations review

  • 4.) timing requirements

    • 6 months probable cause, toll hit 14 days

  • 5.) special approval from the Deputy Assistant Attorney General

Rakas v. Illinois

Only the person whose 4th amendment rights were violated have standing

Search Warrant Requirements

• 1.) Issued by an impartial judge

  • Judge must be neutral and not attached

• 2.) Based on probable cause

  • Facts and circumstances within the police officer’s knowledge are sufficient in themselves to warrant a reasonable person with reasonable caution that something criminal has occurred or will occurred

  • Test: totality of the circumstances (Illinois v. Gates)

    • case by case - look at specific facts

• 3.) Particularly describe the place to be searched or items to be seized

  • Has to have a description sufficient enough to prevent a search of the wrong premises

  • If someone were reading the document - would they know exactly where to go?

    • Need clear guidance to the officers, but also to the judge

Anticipatory search warrant

Allow the officer to seek permission in advance based on probable cause that the evidence will be found at the location at the time the warrant is actually executed

Sneak and Peek warrant

• AKA “Delayed notice” warrant or “covert entry search” warrant

• Authorizes law enforcement officers physical entry into private premises without the owner’s or occupant’s permission or knowledge and clandestinely search the premises

• Usually when the officers don’t what the person to know that their place is being searched

• Usually requires breaking and entering

Common Search Warrant Problems

• Conclusory allegations

  • Lacking proper basis

• Staleness

  • Facts must indicate that the evidence exists in the location now

  • Need to include dates if multiple incidents (ex. Drugs in the hotel room)

• Reliance on CIS

  • Based on the totality of the circumstances (Illinois v. Gates)

• False statements

Knock and Announce Rule (generally)

•  if officers have a warrant that justifies entering a home, they must announce themselves and their purpose before intruding. 

• Tries to balance the concern about privacy and the concern about safety 

Knock and Announce Test

• Richards v. Wisconsin

• Test: whether police 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.”

  • Need to look at: violence criminal history, if they have weapons, etc.

• Reasons for: Violence, privacy, destruction of property

• Reasons to limit: Physical violence, escape, destruction of evidence 

Richards v. Wisconsin

Knock and announce test

whether police 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.”

Does the 4th apply to people being detained but not arrested?

Yes, its a seizure without probable cause

• If you have a warrant on the residence, it implied that the people in the premises are likely a part of that crime

Michigan v. Summers

• Police can detain people at the scene without having to explain why 

• less intrusive than an arrest, justified because of the law enforcement interests in minimizing the risk of harm to officers

• Limits: Baily v US

Baily v US

•  the Summers rule is limited to the area within which an occupant poses a real threat so law enforcement can’t detain someone who left the premises just before they entered

• Ensures that the scope of the rule regarding detention incident to search is confined to its justification

US v. Watson

A warrantless arrest is permitted if there is probable cause to believe the person has committed a felony

When can officers make a warantless arrest?

• US v. Watson: A warrantless arrest is permitted if there is probable cause to believe the person has committed a felony

• Exception - Payton v. New York: police can’t enter a person’s home to make an arrest without a warrant, unless there’s exigent circumstances 

When can an officer perform a warrantless searches?

• Consent

• Search indicent to arrest

• Plain view

• Automobile Exception

• Terry stop and frisk

• Exigent Circumstances

Schneckloth v. Bustamont

Whether consent has been freely given or has been coerced based on the totality of the circumstances

Does someone have to be informed of their right to not consent to a warrentless search?

No, knolwedge is a factor not a prerequisite

Can you get consent for a search at a traffic stop in OR?

No, unless they have reaosnable suspicion or probable cause regarding a crime

Is a search still valid a searching officer had a reasonable but mistaken belief that the third party had common authority, and could consent to the search?

Its okay if its a person who resides there and can consent, its not okay if its someone like a property manager

Are there any limits on police searches based on a warrant or consent?

police have to adhere to any limitations in the search warrant or consent

What happens if someone being searched revokes consent?

The officer performing the search must stop immediately

Chimel v. California

• Search Incident to Arrest

• if someone is lawfully arrested, the police may search their person and any area surrounding the person that is within reach (within their “wingspan”)

• Test: Need a valid arrest + A search incident to that arrest

What are the lmits in a search incident to arrest? (scope, sweep, auto, phone)

• the search must be limited to the body of the person under arrest and the area within their control

• Protective sweep: limited search when executing a warrant to ensure their own safety, and that of those on the scene, by searching in the vicinity of the arrest or location to be searched (Maryland v. Buie)

• Automobile: officers can search automobiles following arrest only if the person arrested could have accessed his car at the time of the search (Arizona v. Gant)

• Cell phone: Police (generally) can’t search a cell phone without a warrant (Riley v. California)

Plain View

• Horton v. California: Police can seize an item without a search warrant under two conditions:

  • 1.) Legally situated: The police officer is lawfully positioned

    • He or she “has a right to be where he or she is situated.”

  • 2.) Probable cause: The police officer has probable cause to believe that the object is evidence of criminal activity.

    • The probable cause must be immediately apparent upon observing the item

Automobile Exception

• Carroll v. United States:  a warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime. 

  • Exception: if the car isn’t mobile, can’t use this exception 

    • Ex: The car is up on blocks

• If it’s a mobile home, can use the automobile exception

• State v. McCarthy (OR): law enforcement may not search an automobile without a warrant simply because it is an automobile.

Terry v. Ohio

•  individuals may be lawfully stopped and frisked based on reasonable suspicion

• When an officer observes unusual conduct that reasonably leads the to assume that criminal activity is afoot and that the people he is interacting with are armed, the police may conduct a limited search for weapons

Terry Reasonable Suspicion Factors

• Criminal activity

• Time

• Location

• Criminal record

• Evasion

• Noncooperation

• Nervous behavior

• Experience

Terry frisk

• here “nothing in the initial stages of the encounter serves to dispel [an officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him” 

• Key: it’s for officer safety

• Plain feel doctrine

Minnesota v. Dickerson

• Plain feel doctrine

• When an officer has reasonable suspicion to stop and to conduct a limited search of a person, contraband may be seized when it is within the officer's "plain feel."  

  • By doing a search of someone’s person, and by feeling an item and believing that it’s a weapon, the police can take it out and confiscate it

Terry stop

Have to have reasonable basis that the cop can articulate based on the circumstances and their experience that the person will commit a crime and they have weapons

K9s used in search

• Florida v. Harris: The use of drug-sniffing dogs during a car search is legally permissible when there is reasonable suspicion of illegal activities.

• Rodriguez v. US: Law enforcement cannot prolong a traffic stop to bring a K-9 unit to conduct an investigation. Instead, the “mission” of a traffic stop must only involve writing a citation and related activities

Exigent Circumstances Exception for a warrantless search

• Hot pursuit: suspect may flee the jurisdiction

• Destruction of evidence: failure to act will result in evidence being destroyed 

• Public safety: if the police believe public safety is endangered

What is an undercover agent?

law enforcement officer who are disguised to gain trust of an organization to gather information or evidence

What is a confidential informant?

person who works undercover for law enforcement to gather information about felonious criminal activities

Does the defendant have a Fourth Amendment right?

1.) Was there government conduct constituting a search or seizure?

2.) Did the defendant have a “reasonable expectation of privacy”?

United States v. Hoffa

The Fourth Amendment does not protect “a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."

Does recording a coversation make a difference when it comes to 4th amendment protection?

United States v. White: No difference with or without recording as no further invasion of privacy

Does statements volentarily made in a forign language make a difference when it comes to expectation of privacy?

United States v. Longoria: No expectation of privacy in multilingual society

Gouled v. United States

If invited into a home, an agent doesn’t have free reign to explore and search anything - they are limited to the scope of the consent

Sorrells v. United States

first recognized entrapment defense

Jacobson v. United States

Entrapment is a complete defense to a criminal charge, first recognized in Sorrells v. United States on the theory that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute"

Sherman v. United States

•  Line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal 

  • Have to look at if the idea was formed with the government agent or with the individual

Subjective test for entrapment

• 1.) Inducement: Did the government induce the crime?

  • a “mere offer” does not constitute an “inducement.”

  • Inducement requires a showing of at least persuasion or mild coercion.

  • Ex: appeals to friendship, compassion, promises of extraordinary economic or material gain or sexual favors, or assistance in carrying out the crime.

• 2.) Predisposition: Was the defendant predisposed to commit the crime?

  • a finding of predisposition is fatal to an entrapment defense

  • whether the defendant was (a) an unwary innocent or (b) an unwary criminal who readily availed himself of the opportunity to perpetrate the crime

  • Shown By:

    • evidence of other crimes (prior offenses)

    • knowledge of and experience with the criminal activity (language, tools, etc.)

Objective test for entrapment

• The requisite level of outrageousness could be reached only where the government conduct is so fundamentally unfair as to be “shocking to the universal sense of justice” (concurrence in Sherman)

  • Ex:

    • Intimidation and threats against defendants family

    • Called every day, then threatened defendant

    • Engaged in forceful solicitation and dogged insistence until defendant capitulated

    • Played upon defendants sympathy for informant’s narcotic experience and withdrawal symptoms

    • Repeated suggestions that worked on when defendant lost job and needed money

    • Told defendant agent was suicidal and needed money

• Cannot look at the prior criminal record to show predisposition to commit the offense

Frye Test

Any science to be recognized by a court as legitimate forensic science must be generally accepted by a relevant scientific discipline

Daubert Test

• The testability of the expert’s technique/theory;

• If it was subject to peer review and publication;

• The known or potential rate of error of the technique/theory;

• The existence and maintenance of standards and controls; and

• Whether it’s been generally accepted in the scientific community.

FRE 702

• Old: if the knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a qualified witness can testify

• New: adopted Daubert

  • (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

  • (b) the testimony is based on sufficient facts or data;

  • (c) the testimony is the product of reliable principles and methods; and

  • (d) the expert has reliably applied the principles and methods to the facts of the case.

Types of eyewitness identification

• Live line up: Typical line up, witness identifies the perp

• Show up: Suspect told to show up somewhere, victim identifies them

• Six pack: Group of six pictures of people that look similar, the victim chooses the suspect out of that group

Watkins v. Sowers

“[T]he Court has recognized the inherently suspect qualities of eyewitness identification evidence, and described the evidence as "notoriously unreliable", while noting that juries were highly receptive to it.”

The factors to consider when determining eyewitness reliability:

• (1) the opportunity of the witness to view the defendant,

• (2) the witness’ degree of attention,

• (3) the accuracy of the witness’ prior description of the criminal,

• (4) the witness’ level of certainty with his identification, and

• (5) the time between the crime and the identification.

When it comes to eyewitness identifications, the Fifth and Fourteenth Amendments’ Due Process Clauses regulate…?

pre-indictment identifications and photographic identifications

When it comes to eyewitness identifications, the Sixth Amendment guarantees …?

the right to an attorney at lineups and showups following the initiation of proceedings against a defendant

Suggestive Identification

• Mason v. Brathwaite: All identification procedures must satisfy the Fifth and Fourteenth Amendment’s Due Process Clauses 

  • Identifications violate the Due Process Clause when they are unnecessarily suggestive and “conducive to irreparable mistaken identification.”

• Perry v New Hampshire: evaluated based on the totality of the circumstances.

  • Absent unnecessarily suggestive identification procedures created by the police, due process does not require a trial court to “screen such evidence for reliability” before allowing the jury to assess its reliability

When can the prosecution use in-court identification?

Wade and Ash: if prosecution can establish by clear and convincing evidence that the in-court identification is not the product of the tainted identification procedure 

The 6th Amendment Right to counsel, generally

 the right of defendants in criminal proceedings, upon request, to have counsel appointed both during the trial and on appeal

When does the 6th Amendment Right to counsel attach for identifications?

• Show up - Kirby v. Illinois: after arrest but before “the initiation of any adversary criminal proceedings is not a critical stage of criminal prosecution at which the accused is entitled to counsel”

  • A post-charge lineup or show-up is a critical stage because individuals who are unrepresented are at risk of being falsely identified Failure to permit a defendant to have access to a lawyer or to waive his or her right to a lawyer results in the exclusion from trial of the results of the identification 

When does the 6th Amendment Right to counsel attach, generally?

• Michigan v. Harvey: The Sixth Amendment right to counsel begins when the suspect is charged or, in other words, when the “suspect” becomes the “defendant”

  • The Sixth Amendment right continues through the pendency of the case and does not depend on whether the defendant is incarcerated.

Powell v. Alabama

• Implicated guarantee of 6th amendment right-to-counsel

• Limited to federal, capital cases

Gideon v. Wainwright

People who can’t afford an attorney will be appointed an attorney

Miranda Rights

• Prior to questioning, suspect must be warned that:

  • They have a right to remain silent

  • Any statement they make can be used as evidence

  • They have a right to the presence of an attorney (retained or appointed)

  • The defendant may waive effectuation of these rights

Rational behind Miranda

interrogations are inherently coercive - people need to be advised of their rights

Dickerson v. United States

Miranda created a Constitutional question - which cannot be overridden by statute

When does Miranda apply

1.) Evidence was obtained while the defendant was in custody; and

2.) Evidence must have been the product of interrogation

What is custodial Interrogation ?

“questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” (Miranda)

What is the test for custodial Interrogation?

J.D.B. v. North Carolina: whether a reasonably prudent person would believe that her freedom of movement is significantly restrained, given the totality of the circumstances.

How do you determine if someone is in custody or not?

• Objective test: whether a reasonable person would feel free to leave

• Factors:

  • Number of police officers

  • If the officers say they’re not free to leave

  • Length/intensity of the questioning

  • Physical force

  • If the stop is in public or private

  • Location of interrogation

  • If a reasonable person would believe the stop would be brief or if it would result in custodial arrest

  • If they are in familiar or unfamiliar surroundings

  • If they’re permitted to leave following the interrogation

Rhode Island v. Innis

Interrogation involves either expression questioning or the functional equivalent of expressing questioning

Express questioning v. Functional equivalent

• Express questioning: questions directed by the police

• Functional equivalent: words/actions on the part of the police (outside of normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect

Are volunteered statements or excited utterances not made in response to an interrogation protected by Miranda?

No

Davis v. US

Police must immediately stop probing if the detainee invokes the right to remain silent or the right to counsel 

What happens if someone invokes the right to counsel v. if they invoke the right to remain silent?

• Invoking the Right to Counsel: Questioning must cease until counsel is available 

• Invoking Only the Right to Remain Silent: Police may reinitiate questioning at a later time, provided that they honor the right to remain silent

Berghuis v. Thompkins

An accused who wants to invoke their right to remain silent is required to do so unambiguously - cops dont have to clarify if its vague

Express Waiver

is when the individual states he or she is willing to make a statement and does not want an attorney.

Implied Waiver

• can be clearly inferred from the actions and words of the person interrogated.

• Government is required to meet a “heavy burden” - showing that the suspect voluntarily, knowingly, and intelligently waived their rights (Miranda)

Governnment has to show that a suspect _______, ________, and _______ waived their Miranda rights

• Voluntary: not coerced

  • Any evidence that an accused was threatened, tricked, or cajoled into a waiver is sufficient to demonstrate that a suspect did not voluntarily waive his or her rights

• Knowing and Intelligent: totality of the circumstances (age, experience, education, background, medical and mental condition, and intelligence)

• Express or Implied: Clearly inferred from the actions and words of the interrogated 

Michigan v. Mosely

Police can continue the interrogation, as long as a new set of Miranda rights are issued

Exceptions to Miranda

• 1.) Public Safety - New York v. Quarles: allows questioning of a suspect after arrest but before reading the Miranda rights if there is an immediate and significant danger to the public.

• 2.) The privilege can only be asserted by natural persons (not corporations)

• 3.) The privilege applies only to self-incriminating statements (not physical evidence)

• 4.) The privilege does not apply if questioning is done by private citizen or by a non-identified state agent

Kinds of false confessions

• Voluntary false confessors: Suspects provide false confessions out of a desire for publicity or because they feel guilty about a past crime or are mentally challenged.

• Compliant false confessors: Suspects confess in order to obtain a benefit such as the avoidance of abuse or mistreatment or to receive favorable consideration at sentencing. 

• Internalized false confessors: Suspects accept the police version of the facts or fail a lie detector

5th / 14th Amendment on confessions

Confessions induced by violence are not consistent with the Due Process Clause and such evidence is therefore inadmissible at trial