Criminal Procedure I: Kamisar Outline 2
CRIMINAL JUSTICE:
POLICE PRACTICE
Professor
Kamisar—Fall 2000
“We can’t
trust the prosecutors or the police or anyone else.
That’s why we have the Bill of Rights.”
- Yale Kamisar
A. General Reflections on the
Criminal Process
1. Stuntz, “The
Uneasy Relationship Between Crim Pro and Crim Justice” (108)
a. Crim justice system
is dominated by trio of forces:
crime rates, definition of crime, and funding decisions.
But that law that defines what the criminal process looks like and what
D’s
rights are is made by judges and Justices who have little info about crime rates
and funding decisions, and whose incentives to take account of those factors may
be perverse.
b.
Courts, thinking its administration is cheap, have
expanded crim pro and done a lot of regulating.
Legislative response = underfunding and overcriminalization
c.
Constitutionalization of crim pro.
Crim pro = judicial policy preferences with a thin legal veneer.
d.
Maybe it should be scaled back.
“Defendants’ interests might best be protected by less procedure, coupled
with a much more activist judicial posture toward funding, the definition of
crime, and sentencing.” What good
is Gideon when prosecutors are so backed up?
2. Skolnick and Fyfe,
“Above the Law: Police and the
Excessive Use of Force” (114)
a.
“The view of police officers is as soldiers engaged in a
war on crime not only diverts attention from more effective strategies for crime
control but also is a major cause of police violence and the violation of
citizens’ rights.” War model.
b.
Low visibility decisions:
“Every day, out of their supervisors’ sight, police officers at the
lowest levels of their departments make what law scholar Joseph Goldstein called
‘low visibility decisions’ that have great effects on the lives and liberties of
individual members of the public.”
No opportunity to review them. The
lower in the police department you go, the greater the discretion of the
official.
c.
“[The] widespread belief that the Supreme Court’s
best-known decisions on search, seizure, and interrogation somehow have
handicuffed the police or otherwise have made citizens less safe is not
supported by any objective evidence.”
3. Maclin,
“Black and Blue Encounters” (117)
a.
“[T]he dynamics surrounding an encounter between a
police officer and a black male are quite different from those that surround an
encounter between an officer and the so-called average, reasonable person…
Black males learn at an early age that confrontations with the police
should be avoided.” Fear of
possible violence or humiliation; distrust.
b.
“Currently, the Court assesses the coercive nature of a
police encounter by considering the totality of the circumstances
surrounding the confrontation. All
I want the Court to do is to consider the role race might play, along with the
other factors it considers, when judging the constitutionality of the
encounter.”
c.
Kamisar (K) thinks its also a matter of class.
4. Why have matters
involving police and prosecutors become such a matter of judicial concern in
this country?
a.
Constitution/Bill of Rights and an independent
judiciary.
b.
Death penalty.
c.
Police abuses.
d.
Failure of legislature to do anything.
e.
Miranda.
B. Relevant Constitutional
Provisions
1. Fourth Amendment:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath of
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
2. Fifth Amendment:
No person … shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law…
3. Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right … to have
the Assistance of Counsel for his defence.
II.
ARREST, SEARCH AND SEIZURE
A.
The Exclusionary Rule
1. Weeks
v.
a.
Facts:
D
was arrested for selling lottery coupons after federal marshals illegally
searched his house and seized letters to use as evidence against him.
b.
Held:
Evidence illegally obtained by federal officers must be excluded in fed ct.
c.
Cited Boyd and Bram.
Man’s home is his castle; indefeasible right of personal security,
personal liberty, and private property.
4th Amendment.
Violation of constitutional rights; letters should’ve been restored to accused.
2. Wolf v.
a.
Q: Does a
conviction by a State court for a State offense deny due process under the 14th
Amendment where evidence was admitted at trial that was obtained under
circumstances that would’ve rendered it inadmissible for a federal offense in
federal court under Weeks?
b.
Answer (per Frankfurter):
A State allowing police incursion into privacy runs counter to 14th
Amendment, but the Constitution doesn’t mandate that the evidence be excluded.
In other words, the DPC does not require the states to exclude evidence
obtained in violation of the 4th Amendment.
Frankfurter drove a wedge between the exclusionary rule (ER) and the 4th
Am by focusing on remedy.
c.
Not harmful unless guilty.
d.
State can come up with methods for enforcing DPC.
e.
Murphy’s dissent suggests possibility of tort action as
remedy. But probably wouldn’t be
effective.
3. Rochin v.
a.
Cops forced way into room,
D
swallowed capsules; dr. pumped his stomach.
b.
Court (per Frankfurter):
Police conduct violated the 14th Amendment.
“This is conduct that shocks the conscience…
They are methods too close to the rack and the screw…”
Just as coerced confessions “offend the community’s sense of fair play
and decency,” to admit this evidence “would be to afford brutality the cloak of
law.”
c.
K points out that Frankfurter avoided the constitutional
question in Wolf.
d.
4. Mapp v.
a.
Cardozo’s famous quote:
“The criminal is to go free because the constable has blundered.”
b.
Facts: Cops
showed up at M’s home and demanded entry.
M called atty, refused to let them in.
Cops later forcibly entered; atty arrived, buy cops wouldn’t let him see
M or enter house. Showed fake
warrant. Continued search, found
obscene materials.
c.
Court overturned Wolf.
“We hold that all evidence obtained by searches and seizures in violation
of the Constitution is… inadmissible in a state court.”
Applied 4th Am against the States.
d.
Court’s reasoning:
i. Ct says that the
exclusion doctrine is an essential part of the right to privacy.
Purpose of ER is deterrence.
But K: Deterrence wasn’t
mentioned in Weeks.
ii. More than half of
the states have adopted Weeks.
iii. Without ER, right is
preserved, but enjoyment of it is prevented; unprotected.
5.
a.
Q: Should
the ER apply to evidence obtained under a search warrant obtained by officers
acting in reasonable reliance on a search warrant issued by a detached and
neutral magistrate but ultimately found to be unsupportable by probable cause?
In other words, should there be a good faith exception to the ER?
b.
Court (per White):
Yes.
c.
Reasoning
i. ER designed to
safeguard 4th Am through its deterrent effect, rather than a personal
constitutional right of the aggrieved.
ii. Substantial social
costs—ER has to pay its way.
“Particularly when law enforcement officers have acted in objective good faith
or their transgressions have been minor, the magnitude of the benefit conferred
on such guilty
Ds
offends basic concepts of the criminal justice system.”
May generate disrespect for the law.
iii. We have limited the rule
in a number of ways.
a.
Stone v. Powell (1976) held it doesn’t
apply in habeas cases.
b.
c.
d.
Alderman v.
e.
INS v. Lopez -
f.
Rakas v.
g.
Walder v.
iv. We consider the
assertion that police will go “magistrate shopping” too speculative.
v. The officer’s
reliance on the warrant must be “objectively reasonable.”
a.
Test:
“whether a reasonably well-trained officer would have known that the search was
illegal despite the magistrate’s authorization.”
Consider all circumstances, including whether warrant application had
previously been rejected by another magistrate.
b.
Neither the officer nor the magistrate can rely on
highly dubious affidavits; nor can warrant be facially deficient in failing to
specify place or thing to be searched.
vi. Excluding evidence
seized pursuant to a good-faith warrant will not have a significant deterrent
effect. Doesn’t affect judges and
magistrates.
vii. “[S]uppression of
evidence obtained pursuant to a warrant should be ordered only on a case-by-case
basis and only in those unusual cases in which exclusion will further the
purposes of the exclusionary rule.”
viii. “In the absence
of an allegation that the magistrate abandoned his detached and neutral role,
suppression is appropriate only if the officers were dishonest or reckless in
preparing their affidavit or could not have harbored an objectively reasonable
belief in the existence of probable cause.”
d.
Dissent (Brennan and Marshall):
It’s the 4th Amendment itself, not the ER’s possible deterrent
effect, that mandates exclusion.
Constitutional command, not judicial remedy.
Costs overestimated. Good
faith exception puts a premium on police ignorance of the law.
When you criticize the ER, you criticize the 4th Am itself.
e.
Stevens’ Dissent: Court
killed one bird with two stones.
i. Old probable cause
standard:
(1) Did the police have
first-hand information?
(2) Was the informant
credible?
ii.
f.
Leon has generally been read as limited to search warrants, but K
thinks language in the opinion suggests that it may not be so limited.
6. Proposed Alternatives
to the Exclusionary Rule:
a.
Tort remedy.
Won’t work b/c it focuses on the last officer in the chain.
ER rests on the whole system, looks at police as an institution.
b.
Wigmore:
Hold police in contempt of court. K
says this would be even more costly, b/c police wouldn’t conduct searches at
all. K points out that Orfield
(140) has shown that police actually do care when evidence gets thrown out.
O says ER leads to greater police professionalism and observance of 4th
Am.
c.
Kaplan (143):
Exempt certain crimes (treason, espionage, murder, etc.) from ER and just
apply the Rochin standard to them.
But K says the police take the ER most seriously in the most serious
cases, so ER would be exempted where it least comes up.
And list of serious crimes would just keep growing.
d.
Kaplan proposal #2:
ER inapplicable where police dept has taken seriously its responsibility
by publishing regulations, etc.
e.
ER applicable only where the reprehensibility of the
police misconduct is greater than the gravity of
D’s
offense.
7. The Reach of
a.
i. Detective could only
find the drug search form on a Sunday and went to judge to get warrant for
different type of search. Judge
authorized search and tried to make necessary changes, but didn’t do it right.
ii. Ct:
This falls within
b.
Michigan v. DeFillippo (1979) (144) held that ER req’d suppression
of evidence obtained in a search carried out pursuant to a statute subsequently
held unconstitutional when the statute, by its own terms, authorized searches
under circumstances that didn’t satisfy the traditional warrant and PC req’ts of
4th Am.
c.
d.
8. The Dimensions of the
Exclusionary Rule
a.
Evidence used as basis for questions to grand jury
witness. See Calandra,
supra p. 3.
b.
Evidence used in criminal case after conviction.
i. Verdugo v.
ii.
c.
Evidence used in “quasi-criminal” or civil case.
i. One 1958 Plymouth
Sedan v. Penn. (1965) (148): ER
applies to forfeiture proceeding.
ii.
iii. See also INS v.
Lopez-Mendoza (supra p. 3) (holding that ER is inapplicable in a civil
deportation hearing).
d.
Evidence obtained by private persons
and used in criminal proceedings.
i. Burdeau v.
McDowell (1921) (149)
a.
ER is a restraint on public authority, not private
persons.
b.
But 4th Am does apply to private individuals
who are acting as instruments or agents of the gov’t.
Whether a person is a gov’t agent is determined by a
totality-of-the-circumstances test, which considers the actor’s motive;
compensation; advice, direction, and level of participation by gov’t.
ii. U.S. v. Jacobsen
(1984) (150, 169): If private
citizen opens packages and calls federal agent, then the agent’s actions are
okay as long as they are not a “significant expansion” of the private search.
On the spot chemical test of trace of powder is not a search because it
only reveals whether or not it was cocaine.
e.
Evidence obtained by virtue of conduct of nonpolice
gov’t employee, used in criminal proceedings.
i.
a.
Some gov’t searches covered by 4th Am are
nonetheless inappropriate occasions for use of ER in light of kind of gov’t
official who was at fault.
b.
Facts:
Clerical failure to void a warrant for traffic violations resulted in erroneous
arrest. Subsequent to that arrest,
marijuana was found.
c.
Ct: No
deterrent effect for clerical errors.
Ct employees have no stake in outcome of particular criminal
prosecutions. Evidence is
admissible.
ii.
f.
Evidence obtained by foreign authorities, used in
domestic criminal proceedings.
i. U.S. v.
Verdugo-Uriquidez (1990) (152):
Foreign citizens and residents are not included in “the people” covered by the 4th
Am. Thus, even when
9. Other Remedies
a.
The “constitutional tort” by state officers.
i.
ii. Harlowe v.
Fitzgerald (1982) (153):
Notwithstanding the magistrate’s issueance of the warrant, the question is
whether a reasonably well-trained officer in petitioner’s position would have
known that his affidavit failed to establish probable cause and that he should
not have applied for the warrant.
Objective standard. See also
Malley v. Briggs (1986) (153).
iii. Monell (154):
Municipality can also be liable.
b.
The “constitutional tort by federal officers.
i. Bivens v. Six
Unknown Named Agents (1971) (154):
p
can sue federal agents for violating 4th Am.
Note that this isn’t a § 1983 action, b/c that statute covers actions
“under cover of state law.”
ii. Congress acted in
accordance with Court’s holding by passing the Federal Tort Claims Act in 1974.
c.
Dismissal of criminal charges.
i. Frisbie-Ker
Rule (155): It is no defense to a
state or federal criminal prosecution that
D
was illegally arrested or forcibly brought within the jurisdiction of the court.
ii. Crews (155,
790):
D
“is not himself a suppressible ‘fruit.’”
d.
Self-help:
Most jurisdictions provide no justification for forceful resistance to an
unlawful arrest by a known officer.
B. PROTECTED AREAS AND
INTERESTS
1. Katz
v.
a.
Facts:
D
convicted of transmitting wagering information based on evidence obtained by
wiretapping public telephone booth.
b.
Q: Can the
police wiretap a public phone booth without a warrant?
Ct: No.
c.
Prior to Katz, did the 4th Am apply to
the seizure of words?
i. Yes and no.
Compare Olmstead (words admissible where no physical trespass
and no seizure of material object) with Silverman (conversation thrown
out; whether words can be seized doesn’t matter, because you illegally got to
the conversation by trespassing).
d.
Court’s reasoning (Stewart):
i. “[T]he Fourth
Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection…
But what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.”
ii.
D
sought to exclude the uninvited ear.
He didn’t shed the right to do so simply b/c he made his calls from a
place where he might be seen.
iii. Gov’t:
No physical penetration of booth.
Ct: Olmstead no
longer controlling. Police action
violated the privacy on which
D
“justifiably relied,” constituting a “search and seizure.”
Penetration irrelevant.
iv. Magistrate could’ve found
probable cause. Should’ve gotten a
warrant.
v. “Wherever a man may
be, he is entitled to know that he will remain free from unreasonable searches
and seizures.”
e.
K: Katz
was hailed as a great triumph for civil libertarians, but it’s actually very
disappointing. Harlan’s concurrence
becomes the dominant opinion.
i. Two-fold
requirement:
a.
Person mush have exhibited an actual (subjective)
expectation of privacy.
b.
The expectation must be one that society is prepared to
recognize as reasonable.
f.
Black’s dissent: Wiretapping
is like eavesdropping. Framers knew
of eavesdropping; if they wanted to outlaw it, they could’ve done so.
2. Privacy is not the only
interest protected by the 4th Amendment.
It also protects property and liberty interests.
a.
b.
Soldad v. Cook County (1992) (159):
Seizure of trailer home is subject to Fourth Amendment even though no
search within the meaning of the 4th Am had taken place.
3.
a.
Cops got warrants based on evidence obtained from
Ds’
trash. State court threw dismissed
charges on basis of Krivda, a CA case that held warrantless trash
searches violate 4th Am and CA Const.
App. ct. aff’d on 4th Am grounds.
b.
Ct’s reasoning (White):
i.
Ds
must manifest a subjective expectation of privacy in their garbage that society
accepts as objectively reasonable.
ii. Fact that
Ds
exposed their garbage to the public sufficiently defeats their claim to 4th
Am protection. They made it readily
accessible to snoops, etc., and they had the express purpose of conveying it to
a third party.
iii. “[P]olice cannot
reasonably be expected to avert their eyes from evidence of criminal activity
that could have been observed by any member of the public.”
iv. Smith v.
v.
c.
Brennan’s Dissent:
Ds
didn’t expose everything to the public—just exterior of opaque, sealed
containers. Cops can go to dump and
search through garbage.
4. Additional Cases and
Contexts
a.
i. Don’t need warrant
to seize evidence even where
D
has resorted to rather extraordinary means to ensure that incriminating
character is not perceived by others.
ii. Facts:
IRS agents painstakingly reassembled documents that
D
shredded into 5/32-inch strips before putting in garbage later placed outside
his curtilage.
b.
Oliver v.
i. Open fields
doctrine from Hester (1924) remains intact after Katz.
Police entry and examination of a field is free of any 4th Am.
restraints.
ii. Ct:
a.
It is not generally true that fences or no trespassing
signs effectively bar the public from viewing open fields in rural areas.
No an expectation that society recognizes as reasonable.
b.
Distinguished open fields from curtilage, the
land immediately surrounding and associated with the home.
Curtilage is the area to which extends the intimate activity associated
with the sanctity of a man’s home and the privacies of life; considered part of
home itself for 4th Am purposes.
c.
i. Helicopter hovering
at 400 ft and spying on greenhouse does not constitute a search requiring a
warrant under the 4th Amendment.
ii. Ct (White):
We would have a different case if flying at that altitude were contrary
to law or regulation. But anyone
could’ve done this; nothing in record suggests that helicopters flying at 400 ft
are sufficiently rare to justify R’s claimed privacy expectation.
iii. O’Connor’s
concurrence: R’s expectation that
his curtilage was protected from naked eye aerial observation from that altitude
was not reasonable.
iv. Dissent (Brennan):
Ct ignores the very essence of Katz.
d.
Other Premises
i. Business and
commercial premises are covered by 4th Am.
See See v. City of
ii. Private areas in
public places. State v.
Bryant (
iii. Detention
facilities.
e.
Vehicles
i. Cardwell v. Lewis
(1974) (168): No search where
police took paint sample off car in public parking lot and matched the tire
tread with tracks at a crime scene.
ii.
f.
Effects. Bond v.
g.
Enhancing the Senses
i. It’s generally
not a search for an officer, lawfully present at a certain place, to detect
something by one of his or her natural senses.
See U.S. v. Mankani (2d Cir. 1984) (168) (no search where
conversations in adjoining motel room were overheard by naked human ear).
Compare Raettig v. State (Fla.App.1981) (168 n.f) (use of
flashlight to look into camper through half-inch wide crack is a search);
State v. Ward (
ii. Canine nose.
See U.S. v. Place (supra p. 7):
Not a search, b/c it doesn’t require opening the luggage.
Less intrusive than ordinary search, and info obtained is limited.
Canine sniff is sui generis because of these limitations.
K says the better explanation is that it only detects the presence of
contraband.
iii. Weapons
detector?
iv. Electronic
tracking.
a.
b.
v. Photographic
magnification. Dow Chemical
Co. v.
vi. Thermal imaging.
vii. Gas
chromatography?
5. “Mere Evidence Rule”
Repudiated. Gouled v. U.S.
(1921) (174) held that search warrants may not be used as a means of gaining
access to a man’s house solely for purpose of making search to secure evidence;
must have a primary right to the property to be seized.
But Warden v. Hayden repudiated this rule, saying that search
simply requires probable cause.
6. Andresen
v.
a.
Does the warranted seizure of
D’s
documents from within his law office and corporate office violate the 5th
Am’s guarantee against self-incrimination?
Ct: No.
b.
Ct:
D
wasn’t asked to do or to say anything.
There is no special sanctity in papers as distinguished from other forms
of evidence.
7. Zurcher v.
Stanford Daily (1978) (177)
a.
Facts:
Police were injured by demonstrators in a protest.
Daily ran photos from a vantage point where assailants might also
have been photographed. Police
obtained warrant and searched the Daily’s photo labs and filing cabinets
for pictures of assailants. Dist ct
held that (1) 4th Am bars issuance of warrant to search for materials
in possession of one not suspected of a crime except upon a showing of probable
cause that a subpoena duces tecum would be impracticable; (2) 1st
Amend bars search of newspaper officers without strong need.
SC rev’d.
b.
The premises of one not suspected of a crime can be
searched. Warrants can be issued
for any property.
c.
Const. guarantees no special protection for press from
searches beyond stringencies of warrant process.
A higher probable cause does not apply where 1st Am interests
are involved. See
d.
Note that a number of states recognize a journalist’s
privilege.
e.
Compare O’Connor v. Johnson (
C. PROBABLE CAUSE
1. Spinelli
v.
a.
D
convicted of crossing state lines with intention of conducting gambling
activities.
D
challenged constitutionality of warrant, claiming that FBI affidavit did not
establish sufficient probable cause (PC).
Ct: Informant’s tip was not
sufficient to provide basis for a finding of PC.
b.
Reasoning
i. Aguilar
v.
ii. Here, affidavit
contained more info: officers
tracked
D’s
movement;
D
was a known bookie; “confidential, reliable informant.”
Other info seemed largely innocent, so it came down to informant.
iii. Magistrate should ask:
“Can it fairly be said that the tip, even when certain parts of it have
been corroborated by independent sources, is as trustworthy as a tip which would
pass Aguilar’s tests without independent corroboration?”
iv. Not sufficient underlying
circumstances; need more detail.
Draper v.
2.
a.
Anonymous letter was sent to police describing in detail
the m.o. of a drug-dealing husband and wife.
Wife drives to
b.
Q: Do these
facts constitute PC? Ct:
Yes.
c.
Illinois Supreme Court, in holding that warrant lacked
PC, derived a two-prong test from Spinelli:
i. Tip must adequately
reveal the informant’s basis of knowledge.
ii. Tip must provide
facts sufficient to establish its veracity.
a.
Credibility of informant.
b.
Reliability of information.
d.
Reasoning (per Rehnquist)
i. Letter alone wasn’t
enough. No indication of how info
was obtained, and no testament to author’s credibility.
ii. Spinelli
provides common sense guidelines, not rigid rules, for determining when there is
PC.
iii. Totality of
circumstances approach is far more consistent with prior cases than IL SC’s
complex test. Veracity,
reliability, and basis of knowledge are highly relevant, but they shouldn’t be
viewed as entirely separate and independent requirements to be rigidly exacted
in every case. A deficiency in one
can be compensated for by a strong showing of another.
iv. We don’t want to encourage
police to conduct warrantless searches.
v. Magistrate should
make a practical, common-sense decision whether, given all the circumstances set
for in the affidavit, including the veracity and basis of knowledge of persons
supplying the hearsay info, there is a fair probability that
contraband will be found. Reviewing
court should simply determine whether there was a substantial basis
for magistrate’s finding of PC.
vi. Corroboration of details
helps.
vii.
n.13, 193: “Probable
cause requires only a probability or substantial chance of criminal activity,
not an actual showing of such activity.”
e.
K:
i.
Cops acted too quickly; got warrant when
Ds
left
ii.
Do we need a good faith exception on top of this?
Ct hasn’t really addressed how Gates and Leon interrelate.
iii.
We don’t know whether this case is limited to search warrants or not.
3. Additional Cases
a.
i. Warrant issued for
search of motor home on basis of tip.
Informant called anonymously, but cop knew who she was and knew that she
had personal knowledge of
D.
Cop verified that motor home was parked where informant said.
ii. Ct:
In light of Gates, there is a substantial basis for believing that
magistrate found fair probability that contraband would be found in motor home.
b.
Note that the probable cause standard can be somewhat
different for searches than for arrests, b/c evidence for searches can quickly
become too stale to constitute PC.
See, e.g., U.S. v. Steeves (8th Cir. 1975) (holding that
warrant was good for some items but not for others where robbery occurred three
months earlier; “a highly incriminating or consumable item of personal property
is less likely to remain in one place as long as an item of property which is
not consumable or which is innocuous”).
c.
State v. Thomas (
d.
Split of authority on whether everything supporting
warrant must be in affidavit and/or whether the sufficiency of PC can later be
established by statements from the officer(s) or judge as to other information
known at the time but not stated in the affidavit.
Compare U.S. v. Clyburn (4th Cir. 1994) (holding that
magistrates can consider sworn, unrecorded oral testimony) with Whiteley v.
Warden (1971) (202-03) (holding that insufficient affidavit cannot be
rehabilitated by testimony possessed by the affiant but not included in
affidavit).
e.
D
may challenge an affidavit that is sufficient on its face but where, for
example, it’s based on false statements.
See Franks v. Delaware (1978) (203) (holding that a hearing should
be held once
D
makes a “substantial preliminary showing”
that a false statement was knowingly, intentionally, or recklessly
included in affidavit). But K says
Court doesn’t go far enough in allowing an attack on a search warrant.
Once you find a flat lie, it should contaminate the whole affidavit.
4. The Informer’s Privilege
a.
McCray v.
i.
Ct: Police will not be
compelled to reveal the identity of an informer, even one who is the source of a
probable cause tip.
ii. K:
How do we know whether there was an informant or not if we can’t push?
Ct worries about threats to informant, but 80% of
Ds
are too poor even to afford an attorney.
They’re not mobsters who are going to have witness snuffed out.
b.
An increasing number of courts are following People v. Darden (NY
1974) (206) in conducting an in camera inquiry where PC fails w/o informant.
5. Other Sources of Probable
Cause
a.
Information from an alleged victim of, or witness to,
a crime. Prior reliability need
not be shown here, unlike informant cases.
b.
Direct observation by police.
See Brooks v. U.S. (D.C.Mun.App. 1960) (holding that “the
probabilities must be measured by the standards of the reasonable, cautious and
prudent police officer as he sees them, and not those of the casual passerby).
c.
Information and orders from official channels.
See Whitely v. Warden (supra. p. 11) (holding that when a radio
bulletin of a warrant leads to an arrest, insufficiencies in the warrant will
invalidate the arrest, even though it was made by officers not involved in the
original, wrongfully obtained warrant issuance).
Is Whitely still good law after Evans, supra p. 5?
D. SEARCH WARRANTS
1. Issuance of the
Warrant
a.
The “neutral and detached magistrate” requirement.
i. Coolidge
v.
ii. Shadwick
v. City of
iii. Connally
v. Georgia (1977) (209):
Unanimous Ct held magistrate not detached where he was paid $5 fee if he issued
a warrant but nothing if he denied app.
iv. Rooker v. Commonwealth
(Ky.App. 1974) invalidated a warrant on a showing that the judge approved it w/o
reading the application.
v.
b.
Particular description of the place to be searched.
It’s enough if the description is such that the officer with a search
warrant can, with reasonable effort, ascertain and identify the place intended.
Steele v.
c.
Particular description of the things to be seized.
More general descriptions are allowed when none better is available or
when item is inherently contraband.
More specific details required where products may be lawfully possessed or where
other similar objects are likely to be in the same place.
Errors are forgivable if officer can still determine what she is looking
for.
d.
Neutrality, particularity, and “good faith.”
Recall
2. Execution of the Warrant
a.
Time of execution.
Statutes and court rules commonly provide that a search warrant must be
executed within a certain time, such as 10 days.
Many jurisdictions also require a special search warrant for nighttime
searches, but Gooding v. U.S. (1974) (212) holds that the federal statute
relating to searches for controlled substances does not so require.
Subject need not be home to execute search.
b.
Gaining entry:
The Knock and Announce Rule.
i.
ii. Richards
v.
iii.
c.
Detention and search of persons on the premises.
i. Ybarra
v.
a.
Tip re: bartender.
Police executed warrant in bar in late afternoon.
Cigarette package containing heroin was located and retrieved from
customer Y’s pocket.
b.
Ct: Warrant
to search bartender only. No PC to
search all of the customers.
Terry (supra p. 24) doesn’t extend to evidence-gathering.
“A person’s mere propinquity to others to others independently suspected
of criminal activity does not, without more, give rise to PC to search that
person.”
ii.
a.
Facts: As
cops were about to execute search warrant, they encountered S, the occupant,
leaving the house. They asked him
to let them enter and then detained him while they searched.
After finding narcotics, they arrested S, searched his person, and found
drugs on him.
b.
Court, per Stevens, upheld seizure on basis of Terry
and related cases, which establish that some seizures constitute such limited
intrusions on personal security of those detained and are justified by such
substantial law enforcement interests that they may be made on less than PC, so
long as police have an articulable basis for suspecting criminal activity.
Ct noted that, because detention was in S’s own residence, it added
minimally to stigma, inconvenience, and indignity.
Police had legitimate interests in preventing flight and in minimizing
risk of harm to themselves.
Existence of search warrant w/ PC verified by magistrate provides objective
justification for detention.
iii. How can Ybarra
and Summers be reconciled?
Maybe distinction between occupants in private home and customers in business.
Police often “freeze the situation.”
d.
Intensity and duration of the search.
Cops may only look where the items described in the warrant might be
concealed. E.g., if warrant for
T.V.s, can’t look in desk drawers.
Once items have been found, search must cease.
e.
Seizure of items not named in the search warrant.
i. Plain view
doctrine: Items found in plain
view may be seized where it is immediately apparent to the police that they have
evidence before them.
a.
Horton v.
b.
How carefully may police examine article to determine
whether it’s incriminating? See
Stanley v. Georgia (1969) (219) (obscene films suppressed where police found
reels while searching for gambling paraphernalia and then viewed the film on a
projector); Arizona v. Hicks (1987) (260) (unreasonable search where
police entered premises from which weapon was fired and moved expensive stereo
equipment to see serial numbers); but see State v. Ruscoe (Conn. 1989)
(219) (where, in executing warrant for other articles, police moved TV equipment
and saw that it was w/o serial numbers; this is lawful under Hicks b/c police
were in the course of searching for items listed in the warrant).
f.
Presence of third parties.
3. The “Preference” for
Warrants
a.
“[T]he police must, whenever practicable, obtain advance
judicial approval of searches and seizures.”
Terry. But many
warrantless searches are upheld.
b.
Situations where warrant is excused:
i. Genuine exigent
circumstances make it unfeasible for police to use the often time-consuming
warrant process.
ii.
iii. Bertine, infra—routine
police practice.
iii. Watson, below—public
places.
E. WARRANTLESS
ARRESTS AND SEARCHES OF THE PERSON
1.
a.
Facts:
Based on informant info, postal officer arrested a man selling stolen credit
cards. He concededly had time to
obtain one, but he chose to make a warrantless arrest, as he was authorized by
federal statute.
b.
Q: Is a
warrantless arrest illegal if the officer could have obtained one?
Ct: No.
c.
Reasoning (White):
i. Ancient common law
rule that an officer was permitted to arrest w/o a warrant for crime committed
in his presence or a felony not committed in his presence if there was
reasonable grounds for the arrest.
ii. By this statute,
Congress expressly rejected the need for exigent circumstances to be proved
(e.g., subject about to flee, impracticability, etc.) in favor of a simple PC
standard. We defer to Congress.
iii. Majority notes U.S. v.
Di Re (1948) (222 n.8), which held that even in the absence of a
federal statute granting or restricting the authority of federal law enforcement
officers, the law of the state where an arrest w/o warrant takes place
determines its validity.
d.
K is interested in Powell’s concurrence:
Warrant req’ts for arrests should be equal to, or perhaps even greater
than, the req’ts for searches. But
history has not followed this logic.
e.
See Skolnick’s finding (226) that police may fabricate
PC by constructing an ex post facto description of the preceding events so that
they conform to legal req’ts.
2. Reasonableness of Seizure
and Promptness of Judicial Review
a.
Tennessee v. Garner (1985) (227)
Rejecting the contention that if the Watson PC req’t is satisfied,
the 4th Am has nothing to say about how that seizure is made,
Garner held that the use of deadly force to arrest a fleeing felon is
sometimes unreasonable under 4th Am.
Where the suspect poses no immediate threat to officer or to others, harm
resulting from failing to apprehend him does not justify the use of deadly for
to do so. Must have PC to believe
threat of serious physical harm.
b.
Graham v. Connor (1989) (228)
i. Reasonableness
standard applies to all claims of excessive force, deadly or not, in the course
of arrest, investigatory stop, or other seizure.
ii. Case-by-case
analysis considers severity of crime, whether immediate threat to safety of
officers or others, and whether resisting or attempting to evade arrest.
iii. Allow for fact that
officers must make split-second judgments.
iv. Are officers’ actions “objectively
reasonable” in light of the facts and circumstances surrounding them,
without regard to their underlying intent?
c.
Gerstein v. Pugh (1975) (228):
Suspect can be taken into custody w/o warrant, but shouldn’t be detained
for too long without going to magistrate to make sure there’s PC.
“We hold that the 4th Am requires a judicial determination of
PC as a prerequisite to extended restraint on liberty following arrest.”
Grand jury hearing counts.
d.
3.
a.
Facts:
Officer stopped
D
w/ PC for operating a motor vehicle w/o license; effected full custody arrest.
In accordance w/ dept regulations, officer patted
Ddown
and found in his breast pocket a crumpled cigarette package containing heroin.
Officer testified that he could tell from feeling the pkg that it
contained objects.
b.
Court (Rehnquist):
Search was permissible.
Reasoning:
i. Search incident to
“lawful custodial arrest” is a traditional exception to 4th Am
warrant exception. Search may be
made of the person of the arrestee and of the area within the
arrestee’s control.
ii. Court of Appeals
held that a full search could only be performed when evidence or fruits of the
crime were sought, limiting protective searches to Terry req’ts.
But SC said that standards for a search incident to lawful arrest aren’t
limited to Terry when no possibility of fruits of further evidence.
iii. Greater danger to officer
where extended exposure to suspect in cases such as this, even when the alleged
crime is benign, than in fleeting Terry stops.
iv. Rule:
Lawful arrest establishes authority to search—presumptively reasonable.
c.
Dissent:
Search should stop when pat-down reveals no weapons.
4. Unlawful, Pretext, and
Arbitrary Arrests
a.
Gustafson v.
b.
i. 9th Cir.
excluded evidence obtained after an arrest for operating a food cart w/o a
license—an offense for which the statute mandated only a citation.
Ct said arrest itself was unreasonable, and thus unlawful under 4th
Am.
ii. Note that the SC
has never taken the position that an arrest made on PC violates the 4th
Am merely b/c a taking of custody is deemed unnecessary.
c. Whren v.
i. Vice-squad officers
patrolling high drug area were suspicious of truck containing youthful
occupants. Truck remained at stop
sign for more than 20 seconds. When cops
made U-turn to head back toward truck, it took off at “unreasonable” speed.
Cops stopped truck, saw bags of drugs in W’s hands.
Ds
argued that stop was not based on PC and that officer’s reasons for approaching
vehicle—to give warning concerning traffic laws—was pretextual.
SC aff’d convictions.
ii. Reasoning (Scalia):
a.
Traffic stop is seizure that must be reasonable.
But
Ds
argued that standard should be higher than ordinary PC; in order to guard
against pretextual racial profiling, test should be whether a police officer,
acting reasonably, would have made the stop for the reason given.
b.
Distinguishes Wells, Bertine, and
Burger (infra) as cases in which there was no PC for the arrest.
Here there was PC.
c.
Officer’s subjective motivation does not invalidate
objectively justifiable behavior.
See Robinson.
d.
EPC can be used to prevent racial profiling.
But K: In
e.
K: Ct is
essentially saying there’s no such thing as a pretext stop.
Now police can stop anyone in a car, because the multitude of traffic
laws is so expansive that you can’t possibly be in full compliance at all times.
5. Other Searches of the
Person
a.
Full searches of an arrested person are usually made when suspect has
been delivered to stationhouse.
Typically upheld on two bases:
i.
As a delayed Robinson search incident to arrest
ii. As an inventory
incident to booking to safeguard the property of the accused and to ensure that
weapons and contraband aren’t introduced into the jail.
b.
But some jurisdictions reject the Robinson rule and/or limited the scope
of an inventory search. See, e.g.,
State v. Kaluna (
c.
i.
Suspect arrested for disturbing the peace; drugs found in shoulder bag
during at-the-station inventory search held admissible.
SC: This is okay.
ii. Reasoning (Burger):
a.
Protects against police theft of suspect’s belongings
and false claims thereof.
b.
Even if less intrusive means of serving this end are
available, such as sealing bag in locker w/o opening it, the 4th Am
doesn’t compel police to employ them.
c.
Cites S.D. v. Opperman (296) (upholding
search of contents of glove compartment of an abandoned automobile lawfully
impounded by police).
d.
e. Can police search
someone in custody for evidence of another crime?
People v. Trudeau (
f.
Schmerber v.
g. Winston
v. Lee (1985) (250): Applying
Schmerber balancing test, Ct held that proposed court-ordered surgery on
D
(for purpose of removing bullet expected to prove that
D
was robber hit by victim’s gunfire) would constitute an unreasonable search.
Reasonableness of surgical intrusions depends on case-by-case approach
that balances individual’s privacy interests with society’s interests in
conducting the procedure.
h.
i. Knowles
v.
i. Unanimous Court
(Rehnquist) rev’d conviction where officer stopped
D
for speeding, issued citation, and made full search of car (uncovering drugs).
ii. Reasoning:
(1) No threat to officer
once suspect ordered out of car and patted down; (2) No need to preserve
evidence of speeding.
j.
Cupp v. Murphy (1973) (252):
Where a murder suspect came voluntarily to the police station, it was
permissible to take scrapings of what appeared to be blood under his fingernails
given the evanescent nature of the evidence.
F. WARRANTLESS
SEARCHES OF PREMISES, VEHICLES, & CONTAINERS
1. Chimel v.
a. Police showed up at home of
D,
who was suspected of robbing a coin store, with an arrest warrant.
When he arrived, they showed him the arrest warrant and asked for
permission to look around. He
objected, but they nonetheless conducted search of entire house and found
contraband.
b. Q:
Was the warrantless search of
D’s
entire house constitutionally justified as incident to a warranted arrest?
Ct: No.
c. Reasoning (Stewart):
i. Rabinowitz
(1950) Rule: Warrantless search
“incident to a lawful arrest” may generally extend to the area that is
considered to be in the “possession” or under the “control” of the person
arrested. That rule, however, can
withstand neither historical nor rational analysis.
ii. When arrest is
made, it’s reasonable for arresting officer to search the person arrested in
order remove any weapons that the arrestee might seek to use in order to resist
arrest or to escape. It’s also
entirely reasonable for officer to search for and seize any evidence on the
arrestee’s person in order prevent its concealment or destruction, and the area
into which an arrestee might reach in order to grab a weapon or evidentiary
items—that is, the area “within his immediate control”—must be governed by a
like rule.
iii. But not other
rooms or concealed areas.
Rabinowitz and Harris overruled.
d.
So what do police do where they’ve arrested a guy at home but don’t have
a search warrant? K:
They impound the house and wait for somebody to go get a search warrant.
2. Search of Premises Incident
to or After Arrest Therein
a.
What constitutes grabbing distance or “immediate
control”? People v. Hufnagel
(
b.
When, if ever, can officers look into other areas of
D’s
home after
D
has been placed under arrest there?
i. Giacalone
v. Lucas (6th Cir. 1971) (258):
D
initially told police he was ready to go; they insisted he change clothes,
then searched drawers before he did so.
ii.
a.
Court rejected state court’s requirement of full PC;
citing Terry (supra p. 24) and Long, it opted for a less demanding
reasonable suspicion test.
b.
Two-Part Sweep Rule:
(1) There must be
articulable facts that, taken together w/ rational inference from those facts,
would warrant a reasonable, prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the arrest scene.
(2) Protective sweep is not
a full search of the premises, but may extend only to a cursory inspection of
those spaces where a person may be found.
The sweep lasts no longer than necessary to dispel the reasonable
suspicion of danger and, in any event, no longer than it takes to complete the
arrest and depart the premises.
iii. When the
officers are seeking other offenders.
See People v. Block (Cal 1971).
c.
d.
Plain view doctrine. See
supra p. 14.
3. Warrantless Searches of
Premises Under Exigent Circumstances
a.
Vale v.
i. Disallowed a search
where suspected drug dealer was searched in front of his home and the officer
proceeded inside to see if anyone else was present.
ii. K actually sides
with dissent; officers couldn’t have gotten a warrant.
B/c
D’s
mother and brother arrived home during arrest, the police couldn’t leave and let
them destroy the evidence.
b.
Securing the Premises While Getting Warrant
i. U.S. v. Grummel
(9th Cir. 1976): Search
permissible when suspect’s mother was at home at time of arrest; agent gave her
option of leaving premises or remaining inside w/ him while another agent left
to get a search warrant.
ii.
Segura v. U.S. (1984) (263)
a.
Police arrested
D
when she answered door of apt. Made
warrantless entry of apt and remained until search warrant was issued—19 hours
later (b/c of “administrative delay”).
b.
Ct: This is
okay. Cops had PC for entry and
arrest of occupants. Good faith
attempt to obtain warrant, despite delay.
Evidence first discovered in execution of warrant was not a fruit of
illegal entry. Didn’t decide
whether police action constituted seizure, but even if it did, it was
reasonable. “Wiser course” may have
been to secure from outside, but method doesn’t change the 4th Am
result insofar as seizure is concerned.
Interference with property interests was almost nonexistent b/c occupants
had been taken into custody.
c.
U.S. v. Rubin (3d Cir. 1973) (264)
When agents have PC to believe that evidence will be destroyed or removed
before they can secure a search warrant, a warrantless search is justified.
Courts should consider degree of urgency; possibility of danger to
officers if they guard evidence; reasonableness of belief that evidence is about
to be removed; indications that suspects know police are on their trail; and
ready destructability of contraband.
d.
Homicide Scene Exception
i. Many courts have
held that when police are summoned to scene of homicide, they may remain on
premises without warrant to conduct general investigation.
ii. But Mincey
v. Arizona (1978) (265) declined to hold that the seriousness of the offense
under investigation itself creates exigent circumstances of the kind that
justify warrantless search under 4th Am.
iii. Thompson v.
Louisiana (1984) applied Mincey in invalidating two-hour general
search of premises to which police were summoned b/c of
D’s
attempt to get medical assistance after shooting her husband.
iv. Flippo v. West
Virginia (1999) (Supp. 17):
After
D’s
911 call that he and his wife had been attacked at a cabin in a state park,
police arrived at scene and found
D
outside wounded and his wife dead inside.
SC, citing Mincey, excluded contents of briefcase near body, found
upon a warrantless police reentry and search several hours later.
e.
When evidence of crime is fortuitously discovered by police w/o while
they are performing other functions, courts find it necessary to assess the
reasonableness of the police conduct under the 4th Am.
4. Payton v.
a.
Facts:
Consolidated cases. P’s case:
Police had PC to believe P committed murder.
Went to apt, w/o warrant; no response to knock, but light and music
emanated from apt. Used crowbars to
enter; no one home. Seized shell
casing in plain view. In Riddick’s
case, police went to R’s home w/o warrant.
When his young son opened door, they could see R sitting in bed.
They entered and arrested him; also searched chest of drawers two feet
from bed in search of weapons and seized narcotics found inside.
b.
Does a warrantless entry of a home for the purpose of
arresting with probable cause violate the 4th Amendment?
Ct: Yes.
c.
Reasoning (Stevens):
i. An entry to arrest
and an entry to search for and to seize property implicate the same interest in
preserving the privacy and sanctity of the home, and they deserve the same level
of constitutional protection.
ii. Rule:
Absent exigent circumstances, the threshold of the home may not be
crossed without a warrant.
Unequivocal constitutional demand.
iii. Ct noted that an arrest
warrant founded on PC implicitly carries w/ it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe the suspect
is within.
d.
Dissent:
Majority ignores common law exceptions.
Rule will hamper law enforcement.
5. Additional Cases Regarding
the Warrantless Entry of the Home to Effect Arrest
a.
“Hot pursuit” Rule:
Warden v. Hayden (1967) (270) upheld warrantless entry and search
where reliable witnesses reported a recent armed robber went into the house five
minutes earlier. Ct admitted
clothing found in washing machine, where an officer looked for weapons prior to
or immediately contemporaneous with
D’s
arrest. “The 4th Am does
not require police officers to delay in the course of an investigation if to do
so would gravely endanger their lives or the lives of others.”
b.
Threshold:
U.S. v. Santana (1976) (270) held that Watson, see supra
p. 15, permitted police to attempt a warrantless arrest of
D
when she was “standing directly in the doorway—one step forward would have put
her outside, one step backward would have put her in the vestibule of her
residence.” She was in a public
place—exposed to public view, speech, hearing, and touch; as exposed as she
would’ve been had she been completely outside.
Thus, under the Hayden hot pursuit rule, the police could’ve
pursued her w/o a warrant when she sought refuge within upon their approach.
c.
Exceptional Circumstances:
Dorman v. U.S. (D.C. Cir. 1970) (relied on in Payton) laid out these
considerations: grave offense;
suspect reasonably believed to be armed; better than minimum PC that suspect is
guilty; strong reason to think suspect is home; likelihood that suspect will
escape if not swiftly arrested; entry, if not consented, is peaceable; time of
day.
d.
Gravity of offense:
Cited by Welsh v. Wisconsin (1984) (271) in holding
hot pursuit doctrine didn’t justify a warrantless home entry and arrest for
drunk driving. But dissent noted
likelihood that evidence would be destroyed.
e.
f.
Steagald v.
i. Facts:
In the course of executing a warrant for L, police entered
D’s
home, where they discovered drugs in plain view.
D
arrested and convicted. SC rev’d.
ii. Reasoning (
a.
Agents sought to do more than to use warrant to seize L
in public place. They relied on it
as authority to enter home of 3rd person based on belief that L might
be there. This belief was never
subjected to the detached scrutiny of a magistrate.
D’s
privacy interest was violated.
b.
If we allowed this, the police, armed solely w/ an
arrest warrant, could search houses of all of that individual’s friends and
acquaintances. Or arrest warrant
could be used as pretext for entering home in which police have a suspicion, but
not PC to believe, that illegal activity is taking place.
6.
a.
Facts: DEA
agents questioned youth after he exited motor home they had seen him enter with
D
over an hour earlier. They had
reports that
D
was exchanging marijuana for sex; youth corroborated that info.
Agents entered motor home w/o warrant and observed drugs and
paraphernalia in plain view. They
arrested
D
and took possession of motor home; subsequent search revealed more marijuana.
b.
Reasoning (Burger):
i. Carroll v.
ii. Two-Fold Rationale
emerges from prior cases:
a.
Ready mobility.
b.
Lower expectation of privacy than in home or office.
iii. Cites numerous
previous cases (276), most of which are listed infra.
iv. Pervasive
regulation of vehicles
à
reduced expectation of privacy.
v. Motor home is a
vehicle, not a home, b/c readily mobile; licensed to operate on streets;
situated in such a way that objective observer would think it was being used as
a vehicle, not a residence. Ct
declined to decide what the outcome should be where a motor home is situated in
a way that objectively indicates that it’s being used as a residence.
c.
Dissent:
i. Warrant would’ve
been easy: They were close to courthouse, or could’ve called.
ii. Compares U.S. v.
Chadwick (1977) (278) (holding that warrantless search of footlocker
violated 4th Am even though there was ample PC to believe it
contained contraband), stating that there are greater privacy interests in
mobile homes than in luggage.
7. The Scope of the Automobile
Exception
a.
The “ready mobility” language does not mean there has to
be an actual likelihood that the vehicle will be moved if search isn’t conducted
immediately. See, e.g.,
Chambers v. Maroney (1970) (279):
An impounded car could be searched w/o a warrant, even though it was
secure in the police lot and a warrant could easily have been obtained.
Numerous other cases hold that the impossibility of flight or tampering
does not alter the automobile exception.
b.
c.
Probable cause required
i.
Chambers held that police just need a “probable cause to search a
particular auto for particular articles.”
ii.
PC limits the scope and intensity of the search.
Some cases indicate that, for example, pulling up flooring of truck goes
too far.
d.
8.
a.
Facts: Cops
stopped car for speeding and faulty brake light.
While questioning driver (Y), officer saw syringe in his pocket and
ordered him out of car. Y admitted
he used syringe to take drugs.
Another officer ordered respondent (H) out of car and searched the passenger
compartment of the car. On the back
seat, he found a purse, which H claimed was hers.
Inside he found a brown pouch and a black wallet-type container, both of
which contained drugs. H
acknowledged that the wallet was hers, but she said the pouch was not hers, nor
did she know how it got there. WY
SC rev’d conviction, holding that search violated 4th & 14th
Am; officer knew purse didn’t belong to driver, and no PC to search passengers’
personal effects or reason to believe there was contraband in them.
b.
Reasoning (Scalia):
i.
ii. Permissible scope
of a warrantless car search is defined by the object of the search and the
places in which there is PC to believe that it may be found.
iii. Passengers, like drivers,
possess reduced expectation of privacy.
And passenger may be in common enterprise w/ driver, w/ same interest in
concealing fruits.
iv. Distinguished Ybarra
and Di Re as limited to body searches.
v. Rule:
Police officers w/ PC to search a car may inspect passengers’ belongings
found in the car that are capable of concealing the object of the search.
c.
Breyer, concurring, had some problems with fact that it
was a purse, noting that it would be different if it had been on her person.
9.
a.
Facts:
Police observed
D,
w/ paper bag in hand, leaving apt of man known to have marijuana in his
possession.
D
placed bag in trunk of car and drove off.
Police stopped him, searched trunk and bag, and found drugs.
b.
Q: Does the
4th Am require police to obtain a warrant to open a sack in a movable
vehicle simply because they lack PC to search the entire car?
SC: No.
c.
Reasoning (Blackmun):
i. Ross rejected
Chadwick’s distinction between containers and cars—i.e., a person’s privacy
expectations in cars and luggage are equal.
ii. In Ross,
police had probable cause to search whole car.
But distinction between PC to search car and PC to search package isn’t
always clear.
ii. If police know they
can only search bag if they have PC to search entire car, they may search more
extensively than they otherwise would in order to establish the general PC
required by Ross.
iii. The search here is far
less intrusive than Carroll, where seats were slashed.
Chadwick-Sanders rule affords minimal protection of privacy.
iv. Held:
4th Am does not compel separate treatment for an auto search
that extends only to a container within the vehicle.
The interpretation of the Carroll doctrine set forth in Ross now applies
to all searches of containers in vehicles.
In other words, police may search w/o warrant if search is supported by
PC.
d.
Scalia’s concurrence:
Should return to the first principle that the “reasonableness” req’t of
the 4th Am affords the protection that the common law afforded.
e.
Stevens’ dissent:
Why should privacy expectation disappear when one climbs into a taxi or
puts luggage in privately owned car?
f.
K: Anomaly:
You can’t search closed container outside car, but you can search closed
container in car if you have PC.
Early doctrine said that if police are focusing on particular suitcase,
etc., they can’t search it outside car, and they can’t stop him once he gets in
car. It had to be a car search, not
just a search specifically of the container.
This line dissolved.
g.
10.
a.
Facts: Cop stopped car
carrying four men for speeding.
Smelled burnt marijuana, saw enveloped marked “Supergold.”
Ordered men out, arrested them, and patted them down.
Searched each individual and the car, including B’s leather jacket, where
he found cocaine. NY Ct of App held
that a “warrantless search of the zippered pockets of an unaccessible jacket may
not be upheld as a search incident to a lawful arrest where there is no longer
any danger that the arrestee… might gain access to the article.”
SC rev’d.
b.
Q: What is the proper scope
of a search of the interior of an automobile incident to a lawful custodial
arrest of its occupants? Ct:
Passenger compartment.
c.
Reasoning (Stewart):
i. Need for single,
familiar standard to guide police.
ii. Robinson
rule (supra p. 15-16): Full search
of person is reasonable when incident to a lawful custodial arrest.
iii. Chimel:
Search incident to arrest may not extend between the area within the
immediate control of the arrestee.
In automobile cases, that area is the entire passenger compartment.
iv. Rule:
When police make lawful custodial arrest of occupant of vehicle, they
may, as a contemporaneous incident of that arrest, search the passenger
compartment of the automobile.
Police may also search the contents of any containers found within the passenger
compartment.
d.
K:
Brennan’s dissent exaggerates the impact of this case.
Search must be contemporaneous with arrest.
11.
a.
Facts:
D
arrested for DUI. While in custody,
and before van impounded, backup officer conducted inventory search, during
which he discovered drugs in closed backpack.
b.
Does the 4th Am require suppression of
evidence discovered during inventory search?
Ct: No.
c.
Reasoning (Rehnquist):
i. Inventory searches
are well-defined exception to requirements of warrant and PC.
Cites LaFayette and Opperman, supra p. 17.
ii. No bad faith or
subterfuge.
iii. 4th Am doesn’t
require police to adopt least intrusive means.
No need to weigh owner’s privacy interest against likelihood that it may
conceal contraband.
iv. Rule:
Reasonable police regulations relating to inventory procedures
administered in good faith satisfy 4th Am.
12. More on Inventory Searches
a.
Evidence found in an otherwise lawful inventory must be
suppressed if the prior impoundment of the vehicle was not justified.
See, e.g., Dyke v. Taylor Implement Mfg. Co. (1968) (302) (search
of car outside courthouse while driver was inside posting bond was improper);
State v. Simpson (
b.
c.
Ex Parte Boyd (
G. STOP AND FRISK
1. Terry v.
a.
Facts:
Officer observed 3 men casing a store.
He stopped them and frisked them for weapons, finding guns.
b.
Q: Is it
always unreasonable for a policeman on the beat to seize a person and subject
him to a limited search for weapons unless there is PC for an arrest?
Ct: No.
c.
Reasoning (
i. Exclusionary rule
has limitations. Sometimes it
doesn’t deter—e.g., where police either have no interest in prosecuting or are
willing to forego successful prosecution in the interest of serving some other
goal.
ii. This is clearly a
search & seizure—serious intrusion that calls 4th Am into play.
iii. Dual inquiry:
a.
Was the officer’s action justified at its inception?
b.
Was it related in scope to the circumstances that
justified it in first place?
iv. This rubric of
police conduct—necessarily swift action based on on-the-spot observations of
policeman on the beat—not subject to warrant procedure.
v. Officer must be able
to point to specific and articulable facts that justify the intrusion.
vi. Objective standard:
Would the facts available to the officer at the moment of the search or
seizure warrant a man of reasonable caution in the belief that the action taken
was appropriate?
vii. Immediate interest
of officer in taking steps to assure himself that suspect is not armed—protect
himself and other potential victims.
viii. Rule:
There must be a narrowly drawn authority to permit a reasonable search
for weapons for the protection of the police officer, where he has reason to
believe he is dealing w/ armed and dangerous individual, regardless of whether
he has PC to arrest the individual for a crime.
ix. Scope:
Sole justification is protection of officer and others nearby, and must
therefore be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of officer.
x. Holding:
Where officer observes unusual conduct that leads him reasonably
to conclude in light of his experience that criminal activity may be afoot…
he can search the outer clothing of such persons in an attempt to
discover weapons that may be used to assault him.
2. Police Action Short of a
Seizure
a.
i. Facts:
Police, w/ badges and guns prominently displayed, boarded bus and,
admittedly w/o articulable suspicion, asked B if they could search his bags;
found drugs.
ii. Ct upheld the
search. Reasoning (O’Connor):
a.
“So long as a reasonable person would feel free ‘to
disregard the police and go about his business,’ the encounter is consensual and
no reasonable suspicion is required.”
Reasonable person test presupposes innocent person.
b.
Cramped confines of bus didn’t make it coercive.
Okay as long as police don’t covey message that compliance is req’d.
c.
INS v. Delgado (1984) (313):
INS agents came into factories and asked employees if they were illegal
aliens. Ct upheld practice despite
fact that agents were guarding exits, essentially preventing interviewees from
leaving.
d.
Remanded to determine whether seizure occurred.
iii. Dissent (
b.
i.
D
fled upon seeing an approaching police car, only to be pursued on foot by
officer.
D
tossed away what appeared to be a small rock but which, when retrieved by
police, proved to be crack cocaine.
State ct suppressed. SC rev’d.
ii. Reasoning (Scalia)
a.
No physical force; show of authority does not constitute
seizure.
b.
“Seizure” means laying on of hands or application of
physical force, even when it is ultimately unsuccessful.
Police yelling, “Stop!” is not seizure.
c.
An arrest requires either physical force or submission
to the assertion of authority.
iii. K:
Before Hodari, if police made show of authority, it was a seizure.
But Hodari adopts the “no restraint, no seizure” model”:
You’re not seized unless you’ve been stopped or until you submit.
c.
3. Grounds for Temporary
Seizure for Investigation
a.
b.
Sibron v.
c.
i. Facts:
Anonymous caller reported to police that young black male standing at
particular bus stop wearing plaid shirt was carrying a gun.
Officers went to bus stop, saw youth, but had no reason to suspect him
apart from tip. Nonetheless, they
frisked him and found gun. SC held
search unreasonable.
ii. Reasoning
(Ginsburg):
a.
Alabama v. White (1990) (320) upheld
search where informant suggested that
D
would emerge from her home w/ brown attaché case carrying cocaine, get into a
brown station wagon w/ precise characteristics, and go to motel.
When police saw that the descriptions were verified and that
D
was headed in direction of motel, they stopped her and asked if they could look
for cocaine. She consented; they
found cocaine in attaché. Ct:
“Close case.” An anonymous
tip alone seldom demonstrates the informant’s basis of knowledge of veracity.
But there were moderate indicia of reliability.
b.
Here there are not same indicia of reliability that were
essential in White. Tip
accurately describing a subject’s location and appearance is not enough, b/c it
doesn’t show that tipster has knowledge of concealed criminal activity.
Reasonable suspicion requires that tip be reliable in its assertion of
illegality, not just in its tendency to identify a determinate person.
c.
We don’t speculate about circumstances under which
danger alleged in tip might be so great as to justify search even w/o showing of
reliability—e.g., bomb—nor do we hold that officers in quarters where 4th
Am privacy is diminished—e.g., airports and schools—can’t conduct protective
searches that aren’t justified in other contexts.
d.
e.
i. By analogy to
Whitely (supra p. 11-12), Ct held that if a flyer or bulletin has been
issued on basis of articulable facts supporting reasonable suspicion that wanted
person has committed offense, reliance on bulletin justifies a stop to check
I.D., question, or briefly detain person.
ii. Rejected lower
court’s holding that Terry is limited to ongoing criminal activity, stating that
the limits of Terry stops are defined by a reasonableness test that balances
nature and quality of intrusion on personal security against importance of
gov’tal interests.
f.
i. Facts:
4 Chicago PD cars were converging on high-drug area; cop saw
D
look at cops and run away.
D
stopped and frisked; cops found handgun.
ii. Ct (Rehnquist):
Standing in high-crime area doesn’t constitute “reasonable,
particularized suspicion” of criminal activity.
But fact that individual is in a high-crime area is on factor that cops
can consider. Here, suspicion was
also aroused by unprovoked flight, and “nervous, evasive behavior is a pertinent
factor.” There may be innocent
reasons to run, but cops can stop to resolve the ambiguity.
iii. Stevens, for 4
dissenters, said the totality of the circumstances, as always, should dictate
result and found that record failed to establish reasonable suspicion.
iv. K:
Kids are more likely to flee in high-crime neighborhood; it’s more
suspicious in a low-crime, high-income neighborhood.
4. Permissible Extent of
Temporary Seizure
a.
Courts differ as to how long seizure may continue before
it becomes illegal. See p. 325:
One court held 25 minutes too long where no additional suspicion; another
said 1 hour not too long when suspect was giving implausible answers.
b.
c.
Model Penal Code recommends maximum of 20 minutes
for Terry stop.
d.
e.
Kolender v. Lawson (1983) (328):
Statutory req’t that made it a criminal offense for a person lawfully
stopped under Terry to fail to provide “credible and reliable” identification
was void for vagueness. K:
Majority would probably say you have to show I.D. when cops ask for it.
See State v. Flynn (
f.
Most courts take the view that if the officer who made a
traffic stop has checked out the driver’s license and registration and has
written up citation or warning, then any extension of the stop thereafter for
the purpose of questioning about drugs or seeking consent to search for drugs is
illegal. See, e.g., U.S. v.
Fernandez (10th Cir. 1994) (329).
Many courts, however, have upheld the Lt. Colombo gambit (“Oh, one more
thing…”) or casual questioning as long as during permissible time span.
g.
i. Facts:
Deputy on “drug interdiction patrol” stopped
D
for speeding. After issuing verbal
warning, he asked
D
if he had drugs in car and asked to search the car.
D
consented; deputy found small amt of drugs.
OH SC suppressed the evidence, holding that cop who is through must tell
person s/he is free to leave before further interrogation.
SC rev’d.
ii. Ct (Rehnquist):
Such a warning is not a prerequisite to a voluntary consent.
Requiring them would be just as impractical as the
right-to-refuse-consent warnings held unnecessary in Schneckloth v.
Bustamonte (343) (infra).
Citing Whren, Ct declared that the subjective intentions of
officer didn’t make the continued detention illegal.
iii. Stevens in dissent
characterized OH SC’s decision differently and noted that this deputy had used
this tactic to make 786 consent searches in one year.
5. Temporary Seizure
of Effects
a.
U.S. v. Van Leeuwen (1970) (331):
Although at some point detention at mail may become a seizure, here it
was permissible for police to delay delivery of package for one day while a
warrant for their search could be issued.
b.
6. Protective Search
a.
Sibron (supra p. 28):
Officer may conduct a frisk where he can point to particular facts from
which he reasonably inferred that the individual was armed and dangerous.
b.
Harris, “Frisking Every Suspect,” observes that
lower courts have stretched the law governing frisks to the point that SC might
find it unrecognizable, consistently expanding the types of offenses, persons,
and situations where it’s permissible.
c.
Minnesota v. Dickerson (1993) (334):
During weapons frisk, officer felt a small lump in
D’s
pocket and, after some squeezing and manipulating it, determined it was crack
cocaine in a plastic bag. Ct struck
down search b/c it continued after officer knew no weapon was present.
d.
e.
Hayes v. Florida (1985) (335):
Majority in dictum opined that on-the-scene fingerprinting would be
permissible if reasonable suspicion that suspect has committed a criminal act
and that fingerprinting will establish or negate suspect’s connection to crime.
Must be carried out with dispatch.
7. Other Brief Detention
for Investigation
a.
b.
c.
In re Fingerprinting of M.B. (N.J.Super. 1973)
(337): ct aff’d order requiring all 22 male members of 8th grade
class at specific school to submit to fingerprinting in order to identify class
ring located near body of homicide victim.
K is troubled by “group probable cause.”
d.
Dunaway v.
H. ADMINISTRATIVE
INSPECTIONS AND REGULATORY SEARCHES
1. Safety
Inspections
a.
Camara v. Municipal Court (1967)
(339): If people refuse the
administrative inspection of their home for fire, health, and housing code
violations, the authorities need a warrant, but PC exists if scheme of
inspection is reasonable. Balancing
approach.
b.
Ct has often upheld warrantless business inspections by
emphasizing the “closely regulated” nature of the business, and that the
inspection permitted by statute or reg. is “carefully limited in time, place,
and scope.”
2. Border Searches
a.
b.
But nonroutine border inspections require more.
Must have “real suspicion” for strip search and “clear indication” for
body cavity search.
3. Vehicle checkpoints
a.
Searching for Illegal Aliens:
Stopping vehicles and searching for illegal aliens away from the border
requires probable cause, Almeida-Sanchez v. U.S. (1973), even at a
permanent checkpoint, U.S. v. Ortiz (1975).
But brief questioning of vehicle occupants at such checkpoints is
permissible without any individualized suspicion whatsoever, U.S. v.
Martinez-Fuerte (1976), and only Terry-type reasonable suspicion is
needed to stop motorists away from border and inquire as to their residential
status (340-41).
b.
c.
d.
City of
i. Facts:
ii. Reasoning
(O’Connor):
4. Search of
students.
5. Supervision of
parolees and probationers.
6. Drug testing
a.
Nat’l Treas. Emp. Union v. Von Raab (1989) upheld
as reasonable the suspicionless drug testing of people being promoted to drug
interdiction jobs and those who will be carrying firearm.
Proper balancing process.
b.
Skinner v. RR Labor Exec. Ass’n (1989), by
similar balancing, upheld blood and urine testing of railway employees following
major train accidents or incidents and the breath and urine testing of employees
who violated certain safety rules.
c.
Vernonia Sch. Dist. 47J v.
d.
I. CONSENT
SEARCHES
1. Schneckloth v.
Bustamonte (1973) (343)
a.
Facts: Guys
riding around in car of one passenger’s brother (owner not present); one
headlight burned out. Cop stopped
car; no one had identification. Cop
asked to search, brother said, “Sure, go ahead.”
Driver opened trunk and glove compartment.
Cop found stolen checks under seat, leading to charges against passenger
B.
b.
Q: What
must the state prove to demonstrate that consent was “voluntarily” given?
c.
Ct’s reasoning (Stewart):
i. Prior voluntariness
cases, most of which involved confessions, conducted careful scrutiny of all
surrounding circumstances. [K:
Why return to voluntariness test that was repudiated in Miranda?]
ii. Look at totality of
circumstances. Knowledge of right
to refuse consent is on factor to consider, but not the sine qua non of
effective consent.
iii. Consent searches may be
the only means available to cops who lack PC.
iv. Consent must never be
coerced, by explicit or implicit means, by implied threat or covert force.
Consider subtly coercive police questions and the possibly vulnerable
subjective state of the person who consents.
v. Holding:
When subject of search is not in custody and State attempts to justify
search on basis of consent, the 4th & 14th Am require that
it demonstrate that consent was in fact voluntarily given, and not the result of
duress or coercion, express or implied.
d.
K: Stewart
wants the police to be able to exploit people’s ignorance.
See also
2. Relevant Factors in
Determining the Validity of a Consent
a.
Bumper v.
b.
Consent may be held ineffective b/c obtained in
exploitation of a prior illegal arrest under Wong Sun’s fruit of the
poisonous tree doctrine.
c.
Recall
d.
Prevailing view is that Miranda warnings need not
precede a valid consent to search.
e.
Standard for measuring scope of consent is
neither the suspect’s intent nor the officer’s perception thereof, but rather
one of objective reasonableness—i.e., what would the typical reasonable
person have understood by the exchange between the officer and the suspect?
See
3. Third Party Consent
a.
i. Police were called
to J’s house, where they met J’s daughter, F, who said she had been assaulted by
D.
F said
D
was then sleeping in “our” apt and said she’d go there w/ cops to unlock door w/
her key. Officers had no search or
arrest warrants. She let them in;
they observed drugs in plain view; arrested
D
and seized drugs.
D
claimed F had vacated apt several weeks earlier and had no authority to consent
to entry.
ii. Can ex-girlfriend’s
consent legitimize the search? Ct:
Yes.
iii. Reasoning
(Scalia):
a.
Matlock “common authority”—mutual use of property
by persons generally having joint access or control for most purposes.
Anyone w/ common authority has right to consent; others assume risk that
this will occur.
b.
F did not have common authority here.
c.
But 4th Am does not demand that officers’
judgments be correct—only that they be “reasonable.”
d.
What is at issue when a claim of apparent consent is
raised is not whether the right to be free of searches has been waived, but
whether the right to be free of unreasonable searches has been violated.
e.
Objective standard:
Would the facts available to the officer at the moment warrant a man of
reasonable caution in the belief that the consenting party
had authority over the premises?
iv.
Dissent: Majority
erroneously assumes that third-party consent cases are generally reasonable.
This is not so.
b.
Who may consent
i. Spouse.
ii. Parent-child.
Head of household may consent to search of child’s living quarters (where
child lives at home and is not clearly an adult); child may not consent to full
search of parent’s house.
iii. Landlords cannot
consent to search of tenant’s premises, but joint tenants can consent
even if they occupy separate bedrooms.
iv. Employer-employee.
Employers may consent to search of top of employee’s workbench, but not
to employee’s desk. Employees in
charge, such as managers, can consent to search of business.
v. Bailor-bailee.
c.
Limits of Third-Party Consent
i. Antagonism.
Cases on both sides.
ii. Defendant’s
instructions. May depend on
whether police knew of instructions.
iii. An absent third-party’s
consent should not be used to waive another individual’s constitutional rights
when that individual is present at the search to give or withhold consent in her
or his own right.
iv. Exclusive control by
D
of effects or areas within shared premises or objects.
d. Seizure v. Search.
U.S. v. Woodrum (1st Cir. 2000) (Supp 31) held that the
logic of third-party consent to searches can apply to seizures,
upholding a program whereby police may stop to check on safety of drivers of
those cabs bearing a decal indicating the owner is voluntarily participating in
a program contemplating stops; passenger, by entering cab w/ decal, assumed
risk).
III.
WIRETAPPING AND ENTRAPMENT
A. HISTORICAL BACKGROUND
OF WIRETAPPING
1. Silverman v.
2. Olmstead v.
3. § 605 of the Federal
Communications Act (in effect 1934-1938) made production of evidence from
wiretap illegal, whether by federal or state authorities or private parties.
4. Lee v.
B. TITLE III
1. Background
a.
Berger v.
b. Then came Katz
(1967). Within seven months of
Katz, Congress passed Title VII of the Omnibus Crime Control and Safe Streets
Act of 1968, granting law enforcement officials extensive powers to conduct
wiretapping and electronic surveillance.
2. Overview of Title
III (see 367 & Supp. 147)
a.
Designed to regulate all “nonconsensual”
electronic surveillance (i.e., when none of the parties overheard have
consented to interception), except “national security” eavesdropping.
b.
Defines “intercept” to mean “the aural acquisition of
the contents of any wire or oral communication…”
Thus, it didn’t cover pen registers until recently.
c.
General exclusionary rule, §2515, applies to all
judicial, quasi-judicial, and administrative proceedings.
But suppression doesn’t follow every failure to follow Title
III—only when statutory provision that was violated was intended to play a
central role in the statutory scheme.
i. Compare U.S.
v. Giordano (1974) (holding that AG Mitchell could not authorize wiretaps
through his secretary; 600 convicted
Ds
consequently went free), with U.S. v. Chavez (1974) (I don’t get this).
d.
Provides exceptions for emergencies—nat’l security or
immediate danger or threat of death or serious physical injury to any person.
e.
Requirements for applications:
PC to believe that particular person involved in specific crime will have
discussion regarding that crime at specified time.
f.
May allow lengthy period of surveillance.
g.
Requires to parties 90 days after application denied or
surveillance terminated.
3. Silent Video Surveillance
a.
b.
c.
People v. Teicher (NY 1981): sexually abusive
dentist.
4. The Facial Validity of
Title III
a.
SC has never explicitly considered the facial validity of Title III.
Court has only interpreted particular provisions.
b.
d.
5. The Need for, and Utility
of, Title III
a.
Studies regarding organized crime, but more importantly
the violence of 1968, led to bill’s passage.
Legislation was viewed as necessary for modern law enforcement.
b.
See generally 375-78.
c.
K upset about National Wiretap Comm’n, which was set up
to review the operation of wiretap statute.
Majority report, written by conservatives, called for more extensive use
of electronic surveillance. Compare
Minority Report (378, fn. g).
d.
Schwartz discusses “strategic intelligence.”
C. APPLICATIONS OF TITLE II
1. Scott
v.
a. § 2518(5) of Title III
requires every order to contain a provision that the authorization to intercept
“be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception.”
b. Facts:
Gov’t agents intercepted virtually all conversations over a phone for
1-month period. Only 40% of
conversations were related to the crime at issue (narcotics trafficking).
Agents admitted that they made no attempt to comply with the minimization
provision. SC upheld reasonableness
of agents’ actions.
c. Reasoning (Rehnquist):
i. An evaluation of
compliance w/ the minimization req’t should be based on the objective
reasonableness of the actual interceptions, in light of the facts and
circumstances confronting the agents, and not on whether the agents’
subjectively intended to minimize their interceptions.
ii. Can’t just look at
percentage of nonpertinent calls.
Some of the nonpertinent calls may be very short, or ambiguous, or one-time,
etc. Where a widespread conspiracy,
agents need more extensive surveillance.
2. Dalia
v.
a.
FBI covertly entered office and spent three hours
installing a listening even though warrant didn’t specifically authorize that.
Agents entered six weeks later to remove bug.
D
convicted partially on basis of conversations seized through bug.
SC upheld.
b.
Reasoning (Powell):
i. 4th Am
doesn’t prohibit per se a covert entry performed for purpose of installing an
otherwise legal listening device.
ii. Legislators
understood that they were necessarily authorizing surreptitious entries as a
concomitant of authorizing electronic surveillance.
iii. Search warrants don’t
have to specify how they’re to be executed.
c.
Goldsmith (383):
Ct’s statutory perspective on Title III has changed.
Although Title III had been designed to constitute a blanket prohibition
against electronic surveillance, subject to narrowly tailored statutory
exceptions, Dalia suggests that the law conferred a general grant of authority
subject to narrowly tailored prohibitions.
d.
Roving surveillance may raise a different problem, as
the warrant will be unable to specify the place to be bugged.
Some have argued that roving surveillance should be limited to a shorter
period of time and held tightly in rein.
D. USE OF SECRET AGENTS (WITH
AND WITHOUT ELECTRONIC DEVICES) TO OBTAIN INCRIMINATING SECRETS
1. Lopez
v.
a.
Facts: IRS
agent recorded
D’s
bribe offers by means of a concealed wire recorder.
Ct: This was not an illegal
seizure.
b.
Reasoning (Harlan)
i. On Lee
v.
ii. Rathbun
v.
iii. No eavesdropping here;
gov’t didn’t use electronic device to listen to conversations it could not
otherwise have heard. IRS agent
could’ve testified. This just
removed flaws from agent’s credibility or memory.
c. Brennan, for dissenters:
On Lee is indistinguishable, and it was wrongly decided.
“There is a qualitative difference between electronic surveillance [and]
conventional police stratagems such as eavesdropping and disguise.
The latter do not so seriously intrude upon the right of privacy.”
Brennan calls the use of recorders and transmitters “third parties.”
2. Lewis
v.
a.
Facts:
D
invited “Jimmy the Pollock,” an undercover narcotics agent, into his home to buy
drugs. Agent testified at
D’s
trial and drugs were introduced. Ct
upheld.
b.
Reasoning (
i.
D
relied on Gouled v. U.S. (1921) (invalidating a search of
D’s
office where the searcher, pretending to pay a social visit, waited for
D
to walk out of office before searching paper).
Ct distinguished Gouled by saying that agent here was invited into
home for purpose of dealing drugs.
ii. If we excluded
this, we’d basically be establishing a per se rule against the use of undercover
agents. When, as here, the home is
converted into a commercial center to which outsiders are invited to commit
crimes, that business is entitled to no greater sanctity than if it were carried
on in a store, garage, or car on street.
c. K:
The best distinction in these cases is probably based on whether the
D
invited the undercover agent to engage in crime.
3. Hoffa v.
a.
Partin volunteered, from prison, to be complicitous in
capture of Hoffa. Ct upheld the use
of Partin to obtain information from meetings to which he was invited.
b.
Stewart, for Court, reasoned that no interest
legitimately protected by 4th Am was implicated.
4th Am doesn’t protect a wrongdoer’s misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not reveal it.
c.
Warran, dissented, objected that Partin’s testimony was
insufficiently credible to support conviction w/o corroboration.
K thinks this is best way to dispose of case.
4. Weatherford
v. Bursey (1977) (390):
D’s
rights were not violated when an undercover agent was present, as a
“codefendant,” a
D’s
meetings with his attorney. The
Court noted that no information disclosed at those meetings was used against
D
or relayed to prosecution. K:
If ever a prophylactic rule was called for, it’s here.
5.
a.
Facts:
Informer carried concealed radio transmitter in numerous conversations w/
D
that were overheard by feds, who either listed to transmitter or, in one
instance, were concealed in informer’s kitchen closet.
No warrant or court order.
Informer didn’t testify at trial; instead, agents’ testimony was admitted.
7th Cir. read Katz as overruling On Lee and
rev’d. SC rev’d.
b.
Reasoning (White)
i. Katz didn’t
overturn On Lee.
ii. Undercover agent
can, of course, write down his conversations w/ a
D
and testify concerning them. It’s
no different if he records them electronically with device on his person or
through transmitter, or if other agents electronically monitor it.
iii.
D
assumes risk in trusting confederates.
c.
Dissenters.
Harlan: Should get warrant for
these activities. Brennan:
In light of Katz, Lopez and On Lee should be viewed
as overruled.
6. Should the law distinguish
between (1) a “trusted accomplice” who, absent prior arrangements with the
police, subsequently them with evidence, and (2) a “trusted accomplice”
who was a police agent all along—i.e., who was planted by gov’t to secure
incriminating evidence?
E. THE TESTS FOR
ENTRAPMENT
1.
a.
Facts:
Undercover agent S went to
D’s
home where he met with
D
and others (J & P). S agreed to
find meth lab and offered to supply
D
w/ an essential ingredient for making meth.
P revealed that they were already making meth.
At subsequent meeting, P said they had recently obtained the ingredient
and wouldn’t need more for a couple of days.
Ingredient was said to be difficult to obtain.
D
convicted; Ct of App rev’d, holding that
D
was entrapped. SC rev’d.
b.
Reasoning (Rehnquist):
i. Lower courts are
confused. Two alternative theories
of entrapment: (1) whenever gov’t
supplies contraband to
Ds;
or (2) whenever gov’t is so enmeshed in criminal activity that prosecution of
Ds
is repugnant to American criminal justice system.
ii. Sorrells v.
iii.
iv.
D
wants use to find entrapment wherever crime couldn’t have been carried out w/o
officer. But ingredient here
could’ve—indeed, was—obtained by
Ds
w/o gov’t. S’s contribution was
scarcely objectionable.
v. Reaff’d Sorrells
and Sherman.
vi. We should immunize someone
who planned to commit the crime just b/c some hypothetical, innocently disposed
person might have been seduced by gov’t.
c.
Dissent:
Majority adopts subjective approach.
We prefer objective approach, which focuses not on
D’s
propensities, but rather on whether the police acted in such a way as is likely
to instigate or create a criminal offense.
d.
Kamisar, speaking of the Biblical tale of the beguiling
serpent: “I’m perfectly happy to
give up the exclusionary rule if I can get cops to crawl on their bellies.”
2. Subjective v. Objective
Test
a.
b.
Roger Park (409) doubts that the objective person test
could control the conduct of police and informers.
c.
Objective test ignores the criminal’s predisposition and
focuses on the propriety of the inducement.
Subjective test focuses on criminal’s predisposition to commit the crime.
d.
Subjective test permits the use of otherwise
inadmissible hearsay and suspicions—including prior arrests, prior misconduct,
and reputation—to prove disposition.
Park suggests that these shouldn’t be admissible simply because accused
has raised entrapment defense. If
stripped of this propensity evidence, subjective test would become very
reliable.
e.
Seidman (410):
Two tests really aren’t that different.
A
D
who responds favorably to “proper” inducements has thereby conclusively
demonstrated that he is disposed to crime when such an inducement is offered.
f.
K: Problem
with objective test is that criminals will figure out what gov’t can’t do and
work around it.
3. More on the Entrapment
Defense
a.
Williamson v.
b.
Matthews v.
c.
Burden is on
D.
F.
Due Process Defense to Gov’t
“Overinvolvement” in Crime
1.
2.
3. K:
One form of the objective test finds entrapment where what the gov’t did
is “repugnant” to the American justice system.
Cites Twigg and Posner’s hypo (435).
4.
5.
6. Marcus (417),
however, argues that due process defense in entrapment cases is important b/c
“it creates outer limits on appropriate law enforcement techniques and b/c it
clearly demonstrates to the legal and law enforcement communities, and to
society at large, that courts are indeed willing to draw some lines that cannot
be crossed even in pursuit of criminals.”
7.
a.
Facts:
Abscam scandal. Congressman Kelly
involved in complicated scheme in which FBI attempted to catch politicians
accepting bribes from Arabs. W told
C that wealthy Arabs wanted to ensure private immigration legislation would get
passed. C told
D,
who said he would help for a fee and for investment in his district.
Eventually
D
met w/ an undercover agent and, after some persuading by agent, accepted direct
payment.
b.
Did FBI’s involvement violate due process?
Ct: No.
Not demonstrable level of outrageousness; not significantly different
from undercover drug operations.
D
only objected to manner in which he was paid, not payment itself.
Entrapment requires “intolerable gov’t conduct.”
c.
Ruth Bader Ginsburg, concurring:
This is extraordinary, but doesn’t meet SC’s requisite level of
outrageousness, b/c no coercion, violence, or brutality to person.
8. Prof Gershman proposes
federal entrapment statute that requires gov’t agents to offer inducements only
to individuals engaged in, or reasonably suspected of engaging in, criminal
activity.
G.
Recent Developments in the Entrapment
Area
1. Jacobson
v.
a.
Feds added
D
to suspect list b/c he bought magazines containing nude preteen and teenage
boys. Gov’t sent him fake materials
to enroll in fictitious organizations.
D
returned questionnaire, indicating he was opposed to pedophilia.
After further solicitation and direct correspondence,
D
ordered a magazine from a fake company and was arrested.
8th Cir. aff’d conviction; SC rev’d.
b.
Reasoning (White):
i. “[I]n their zeal to
enforce the law [the Gov’t] 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 Gov’t may prosecute.”
ii. Prosecution has
burden to prove beyond reasonable doubt that
D
was disposed to commit the criminal act prior to first being approached by gov’t
agents.
iii. “[E]vidence that merely
indicates a generic inclination to act within a broad range, not all of which is
criminal, is of little probative value…”
iv.
D
was acting w/in the law when he ordered the first magazines.
v. Gov’t can’t implant
in
D’s
mind the disposition to commit the crime.
If left to his own devices, he would never have run afoul of the
law. K says lower courts are
latching onto italicized language.
2. Posner in Miller
says these kinds of police practices are not efficient.
3. Some commentators suggest
that Jacobson blended subjective and objective tests.
4. Reverse-sting cases—i.e.,
where gov’t is seller, rather than buyer of contraband, as in Jacobson.
5.
6.
7. U.S. v. Knox (5th
Cir. 1997) (437): 5th
Cir., while acknowledging that 9th and 1st Circuits
adopted different tests, followed Hollingsworth’s positional predisposition test
in holding that
D
was entrapped as a matter of law where “the gov’t failed to prove that the
preacher was likely to engage in money laundering absent the gov’t’s conduct.”
III.
RIGHT TO COUNSEL, TRANSCRIPTS, AND OTHER AIDS
A. Introduction
1. Report of AG’s
Committee on Poverty and Criminal Justice (1963) (60):
“The essential point is that the problems of poverty with which this
Report is concerned arise in a process initiated by the gov’t for the
achievement of basic governmental purposes…
While gov’t may not be required to relieve the accused of his poverty, it
may properly be required to minimize the influence of poverty on its
administration of justice.”
2. Indigent
D’s
“obligation” to repay gov’t for defense costs.
a.
Rinaldi v. Yeager (1966) (62) invalidated as
invidiously discriminatory a NJ statute requiring only those
Ds
who were sentenced to prison to reimburse gov’t for legal costs.
b.
Fuller v.
B. RIGHT TO APPOINTED
COUNSEL AND RELATED PROBLEMS
1. Betts v. Brady
(1942) (63) (K “one of the ten worst”)
a.
Betts, an indigent, was accused of robbery; local
practice permitted appointed counsel only in rape and murder cases.
Convicted and sentenced to 8 yrs.
b.
Does Constitution require appointment of counsel in
these circumstances? Ct:
No.
c.
Reasoning (Roberts):
i. 14th Am
DPC does not incorporate the 6th Am.
Due process is a “less rigid and more fluid” concept than other specific
provisions of Bill of Rights. Must
appraise totality of facts in a given case.
ii. Powell
v.
iii. Johnson v. Zerbst
(1938): 6th Am requires
the appointment of counsel in all federal cases where
D
can’t procure atty and hasn’t waived right to counsel.
Prosecution must show an intentional relinquishment of a known right.
iv. In the states, it’s a
matter of legislative policy. May
not be fair, but 14th Am doesn’t demand it.
We shouldn’t straight-jacket the states.
d.
Black’s bitter dissent:
i. I think 14th
Am made 6th Am applicable to the states.
But since Ct has never said that, Betts still deserved counsel under due
process analysis.
ii. Right to counsel in
a criminal proceeding is a fundamental right.
“Whether a man is innocent cannot be determined from a trial in which, as
here, denial of counsel has made it impossible to conclude, with any
satisfactory degree of certainty, that the
D’s
case was adequately presented.”
2. Gideon v. Wainwright
(1963) (67)
a.
Facts:
D
charged w/ entering a public place w/ intention of committing a misdemeanor,
which was a felony in FL. He
requested that counsel be appointed for him, but the judge refused because it
was not a capital case.
b.
Q: Are the
States required to provide counsel to the indigent?
Ct: Yes.
c.
Reasoning (Black):
i. Guarantee of counsel
is a fundamental right; 6th Am is made obligatory upon the States by
the 14th Am.
ii. Betts
departed from Powell. We now
overturn Betts. Twenty-two
states support our ruling.
iii. “Gov’ts, both state and
federal, quite properly spend vast sums of money to establish machinery to try
defendants accused of crime.
Lawyers to prosecute are everywhere deemed essential to protect the public’s
interest in an orderly society…
[L]awyers in criminal courts are necessities, not luxuries.”
3. Argersinger
v. Hamlin (1972) (71)
a.
Ct struck down
b.
Powell’s concurrence, joined by Rehnquist, says that
right to counsel in petty offense cases should be a case-specific determination
in trial judge’s discretion.
Considerations: complexity of
offense; probable sentence; other individual factors.
4. Scott v.
5. Can a prior uncounseled
misdemeanor conviction be used to enhance a
D’s
prison sentence when, given counsel, he is convicted of a second crime?
a.
Baldasar v.
b.
But Baldasar was overruled in Nichols
v. U.S. (1994) (Rehnquist) (holding that an uncounseled nolo contendere
plea to a state misdemeanor could be used to enhance prison sentence for federal
drug charge).
6. When does the
right to counsel begin or attach?
See p. 76.
a.
See infra Miranda (“custodial
interrogation”); Wade (pretrial lineups); Coleman (preliminary
hearing).
b.
Compelled self-incrimination cases aside, one only has
the right to counsel (1) at a “critical stage” of (2) the “prosecution.”
See infra Ash, Kirby, Williams I:
right to counsel doesn’t come into play simply b/c suspect has become
prime suspect or focal point (contrary to Escobedo); person is entitled
to counsel, assuming the prosecution has reached a critical stage, at or after
the time that judicial proceedings have been initiated against him, whether by
way of formal charge, preliminary hearing, indictment, information, or
arraignment, presumably as early as the first appearance before a judicial
officer.
c.
When judicial proceedings have not been initiated,
Miranda strikes the appropriate balance.
d.
C.
The Griffin-Douglas “Equality”
Principle
1.
a.
14th Am Due Process and Equal Protection
Clauses require that all indigent defendants be furnished a transcript for
appeal, at least where allegations that manifest errors occurred at trial are
not denied.
b.
Black’s plurality opinion contains strong language that
K says is unfortunately not true.
“There can be no equal justice where the kind of trial a man gets depends on the
amount of money he has.”
c.
Through the ‘60s,
d.
Mayer v.
2. Douglas v.
a.
Facts:
Indigent petitioners requested, and were denied, assistance of counsel on
appeal. SC rev’d.
b.
Holding: If
you offer appeals as a matter of right, you must provide counsel.
Reasoning (
i. “[A] State can,
consistently with the 14th Am, provide for differences so long as the
result does not amount to a denial of due process or an ‘invidious
discrimination.’ Absolute equality
is not required… [But] where the
merits of the one and only appeal an indigent has as of right are decided w/o
benefit of counsel, we think an unconstitutional line has been drawn between
rich and poor.”
ii. “When an indigent
is forced to run this gauntlet of a preliminary showing of merit, the right to
appeal does not comport with fair procedure…
There is lacking that equality demanded by the 14th Am where
the rich man, who appeals as of right, enjoys the benefit of counsel’s
examination into the record… while the indigent… is forced to shift for
himself.”
c.
K thinks that, constitutionally, a State could make
appeals for all
Ds
discretionary. K:
In forma pauperis appeals are only frivolous b/c
Ds
don’t know what they’re doing.
d.
Harlan’s dissent:
i. This doesn’t violate
EPC, b/c it’s a laws of general applicability.
It may affect the poor more harshly than the rich, and it may not
eliminate economic imbalances, but EPC doesn’t require a State to give to some
whatever others can afford.
ii. Real question is
whether it meets the requirement of fair procedure guaranteed by Due Process
Clause. This is entirely different
from Gideon. Appellate
procedures are not required by 14th Am.
At least
D
had counsel at trial. Doesn’t
violate DPC.
e. K:
There’s a problem with the equal protection principle.
Court doesn’t know where to stop it.
3. Ross v. Moffitt
(1974) (84)
a.
Facts:
D
was denied appointed counsel under a NC law that authorized appointment of
counsel for a
D
appealing to the intermediate court of appeals, but not for a
D
who seeks either discretionary review in the state supreme court or a writ of
cert. to U.S. SC. 4th
Cir. held that
b.
Q: Does the State have an obligation to pay for counsel
for one who seeks discretionary review or certiorari to the Supreme Court?
SC: No.
c.
Reasoning (Rehnquist):
i. DPC doesn’t require
NC to appoint counsel here. There
are differences between the trial stage and the discretionary appeal sought
here.
D,
not the state, initiates the appeal.
Thus, appointed counsel is used on appeal as a sword, not a shield.
State need not provide an appeal at all.
“Unfairness results only if indigents are singled out by the State and
denied meaningful access to that system because of their poverty.”
ii. EPC:
There are limits to EP. 14th
Am requires that indigents have an adequate opportunity to present their claims
w/in adversarial system, but it’s a matter of degrees.
At least
D
had one appeal, so he had meaningful access.
“[T]he fact that a particular service might be of benefit to an indigent
D
does not mean that the service is constitutionally required.
The duty of the State under our cases is not to duplicate the legal
arsenal that may be privately retained by a criminal
D
in a continuing effort to reverse his conviction, but only to assure the
indigent
D
an adequate opportunity to present his claims fairly in the context of the
State’s appellate process.”
D
got that.
d.
K:
Rehnquist initially gets the DP/EP distinction right:
DP “emphasizes fairness between the State and the individual dealing with
the State,” while EP “emphasizes disparity in treatment by a State between
classes of individuals whose situations are arguably indistinguishable.”
But then he screws it all up.
Fighting chance, fair chance, “adequate opportunity,” and “meaningful
access” are about DP, not EP.
When you get through Rehnquist’s opinion, there’s nothing left of EP.
e.
K:
“Indigence is not a convenient valve for reducing the impact of a decision the
gov’t imposes on the merits.”
[Where’s this quote from?]
4. U.S. v. McCollum
(1976) (89): Upheld federal statute
that provides a free transcript for an indigent’s habeas appeal only if trial
judge certifies that the claim is “not frivolous” and that the transcript is
needed to decide the issues presented.
Hostile language: “Nor does
the Constitution require that an indigent be furnished every possible legal
tool, no matter how devoid of assistance it may be, merely because a person of
unlimited means might choose to waste his resources in a quest of that kind.”
5. Ake v.
a.
Holding (
i.
When
D
has made a preliminary showing that his sanity at the time of the offense is
likely to be a significant factor at trial, the state must provide access to
“the psychiatric examination and assistance necessary to prepare an effective
defense based on [the
D’s]
mental condition.”
ii.
When, at a capital sentencing proceeding, the state presents psychiatric
evidence of the
D’s
future dangerousness, due process requires access to psychiatric assistance.
b.
Reasoning: Due process language—“fair opportunity,”
“meaningful access,” “basic tools of an adequate defense or appeal.”
c.
Burger, concurring, said this is limited to capital
cases. Rehnquist, dissenting,
thought the constitutional rule announced by the Court was “far too broad.”
d.
K: Ake
doesn’t go far enough.
6. Court, in determining
whether something is a “basic tool,” whether it is a “virtual necessity.”
D. RIGHT TO COUNSEL IN
PROCEEDINGS OTHER THAN CRIM PROSECUTIONS
1. Gagnon
v. Scarpelli (1973) (94)
a.
Facts:
D
(S) pled guilty to armed robbery, sentenced to 15 years, suspended for 7 years
probation. A month later he was
caught in the course of a burglary and confessed, but he claimed his statement
was made under duress. Probation
was revoked w/o a hearing.
b.
Q: Does an
indigent propationer or parolee have a due process right to be represented by
appointed counsel at hearings? Ct:
No.
c.
Reasoning (Powell):
i. Mempa v. Rhay
(1967) held that propationer is entitled to be represented by appointed counsel
at a combined revocation and sentencing hearing.
We said that counsel is required “at every stage of a criminal proceeding
where substantial rights of an accused may be affected.”
ii. The rule
D
wants would impose substantial costs without regard to need.
There’s not great need here.
This would alter the nature of the proceedings, making them more litigious.
iii. Betts’
case-by-case approach may have been bad in the context of criminal trials, but
it’s not bad for all types of proceedings.
This is different from a criminal trial—no prosecutor, just a parole
officer; no jury, just a judge familiar with parole issues; no rules of evidence
or formal procedures; lawyer may make hearing body less attuned to
rehabilitative needs. We like
Betts’ flexibility.
iv. Rule:
Need for counsel must be made on a
case-by-case basis in the discretion of the parole administering authority.
Should consider whether timely request for counsel was made on basis of
colorable claim that
D
didn’t do it; substantial reasons that mitigated the violation; whether
D
can adequately represent himself.
2. The Right to Counsel and
the Loss of
a.
Middendorf v. Henry (1976) (98):
No right to appointed counsel at summary courts-martial, even though
could get 30 days hard labor. Ct
(per Rehnquist): “[T]he fact that
the outcome of a proceeding may result in loss of liberty does not by itself,
even in civilian life, mean that the 6th Am’s guarantee of counsel is
applicable.”
b.
In re Gault (1967) (98):
Established a right to appointed counsel in juvenile delinquency
proceedings that may result in the loss of the child’s freedom.
c.
Lassiter v. Dept. of Social Services
(1981) (99): No right to appointed
counsel in formal judicial proceedings to terminate parental status.
State courts should determine this on a case-by-case basis.
“[A]s a litigant’s interest in personal liberty diminishes, so does his
right to appointed counsel.”
Dissenters protested that a parent has a uniquely important interest in the care
and custody of his/her children. K:
Betts v. Brady all over again.
There are some things that are as important as liberty.
K suggests drawing a line by saying that you’re entitled to appointed
counsel in order to challenge the gov’t whenever the gov’t is trying to do
something to you. This
distinguishes eviction and private custody proceedings.
3. Collateral Attack
Proceedings
a.
Bounds v. Smith (1977) (99):
States must affirmatively provide “meaningful access” to the courts for
inmates by allowing inmate “writ writers” to function.
This means allowing, as Johnson v. Avery (1969) held, inmates to
furnish assistance to other inmates seeking post-conviction relief, unless and
until the State provides some reasonable alternative.
It does not require the States to expend State funds to implement the
right affirmatively. But States do
have to furnish law libraries or adequate assistance from persons trained in the
law. Rehnquist and Burger, of
course, dissented, saying that Court was enunciating a fundamental right of
“access to the courts” found nowhere in the Constitution.
b.
Pennsylvania v. Finley (1987) (100):
Even if a State decides a
D
is entitled to counsel in a post-conviction hearing, that counsel may decide
that the claims are w/o merit and withdraw w/o following the federal
constitutional procedures prescribed in Anders.
Ct, per Rehnquist: “We have
never held that prisoners have a constitutional right to counsel when mounting
collateral attacks to their convictions and we decline to so hold today.”
c.
i. Mello (105):
“No greater risk is available in our legal world.
Nowhere is a mistake more profound.
At the same time, the state, scenting blood…, deploys its finest to
secure a death.”
d.
Lewis v. Casey (1996) (106):
Ct, per Scalia, read Bounds quite narrowly, holding that inmates seeking
class relief for inadequate right of access to courts must show widespread
“actual injury.” Ct emphasized that
Bounds did not establish the right to a law library or to legal
assistance, but merely required states to provide those tools that inmates need
to attack their sentences or prison conditions.
Inmates must show that lack of law library actually hindered their
efforts to pursue a legal claim. A
group of Justices, led by Souter, concurred in part and dissented in part.
IV.
POLICE INTERROGATIONS AND CONFESSIONS
A. DIFFERENT PERSPECTIVES
1. Fred Inbau,
“Police Interrogation—A Practical Necessity (1962) (439)
a.
“Privacy.”
Actually, says K, it’s secrecy.
b.
“
c.
“Unhurried interview.”
d.
Questioning suspects “not otherwise unwilling to talk.”
e.
Notion of benevolent interrogation that can clear the
innocent.
2. Kamisar, “Equal
Justice in the Gatehouses and Mansions” (1965) (443)
3. Joe Grano,
“Confessions, Truth, and the Law” (1993) (447)
a.
The availability of police to interrogate suspects made
it possible to take that role away from judges.
b.
Historically, there has never been much approval of
protections for those to admit to crimes.
Common law voluntariness rules didn’t apply to police at all.
B. HISTORICAL BACKGROUND
1. The Due Process
“Voluntariness” Test
a.
For centuries the rule that a confession was admissible
so long as it was “voluntary” was more or less an alternative statement of the
rule that a confession was admissible so long as it was free of influence that
made it untrustworthy or “probably untrue.”
b.
In its advanced state (the early 1960s), the “due
process” or “voluntariness” test had three underlying values or goals.
Barred the use of confessions that (a) were of doubtful reliability b/c
of the police methods used to obtain them; (b) were produced by offensive
methods even though reliability was not in question; and (c) were involuntary in
fact (e.g., obtained from drugged person) even though entirely trustworthy and
not the product of police wrongdoing.
c.
At the outset, however, the primary bases for excluding
evidence under the “voluntariness” was the “untrustworthiness” rationale.
Confession rule was designed merely to protect integrity of fact-finding
process.
d. Brown v.
d.
Ashcraft v.
e.
Watts v.
f.
Rochin v.
g.
Spano v.
h.
Rogers (per Frankfurter):
“Our decisions under [the 14th Am] have made clear that
convictions following the admission into evidence of [involuntary confessions]
cannot stand… because the methods used to extract them offend an underlying
principle in the enforcement of our criminal law: that ours is an accusatorial
and not an inquisitorial system.”
i.
As the Court stated in Schneckloth (supra
p. 30), there was no single controlling criterion in due process confession
cases; rather, “each reflected a careful scrutiny of all the surrounding
circumstances,” including “the characteristics of the accused… and the details
of the interrogation.”
Examples: stripped naked for
several hours; threatening to cut off aid to suspect’s children; isolated
locale; refusing to allow phone call; pretending to bring
D’s
invalid wife; saying that “childhood friend” had gotten in “a lot of trouble”;
using psychiatrist w/ considerable knowledge of hypnosis.
2. Shortcomings of the
“Voluntariness” Test
a.
Seems at once too wide and too narrow.
b.
Shulhofer:
It virtually invited trial judges “to give weight to their subjective
preferences” and “discouraged review even by the most conscientious appellate
judges.”
c.
“Swearing contest” was almost always resolved in favor
of police.
d.
Mincey v.
3. The McNabb-Mallory
Rule
a.
McNabb v. U.S. (1943) (457)
Frankfurter, for majority, pointed out that the federal courts are
limited to the 14th Am in upsetting state convictions, but that the
courts can exercise “supervisory authority” over the administration of federal
criminal justice, going well beyond due process.
Ct threw out a voluntary confession obtained while a suspect was
illegally detained (i.e., not taken before magistrate).
b.
Mallory v.
4. Right to Counsel
a.
Crooker v.
b.
Cicenia v. La Gay (1958):
Aff’d conviction of
D
who unsuccessfully asked to see his lawyer while being questioned even though
his lawyer was at the station asking to be let in.
Citing Crooker, the Court said
D
had no const’l right to confer with counsel.
c.
Spano held that once a person is formally
charged by indictment, his right to counsel—or at least to counsel he himself
had retained—attaches.
5. Massiah v.
a.
Facts:
D
released on bail after being indicted and retaining a lawyer.
C,
D’s
co-D,
cooperated w/ feds and had radio
transmitter in care while eliciting incriminating statements from
D.
b.
Court (Stewart):
i. Decisive feature was
that
D
had been indicted and was therefore “clearly entitled to a lawyer’s help”
at a time when he was awaiting trial.
ii.
D
subjected to a “completely extrajudicial” proceeding designed to obtain
incriminating statements. He may
not have been in a coercive atmosphere, but he didn’t know that he needed to be
on his guard.
iii.
D
was denied the basic protections of the right to counsel; statements couldn’t be
used against him at trial.
c.
Dissenters emphasized that wasn’t in custody and wasn’t
under police interrogation; no official pressure.
Nor was
D
prevented from conferring w/ counsel as often as he wished.
d.
This rule survives Miranda.
Once you’ve been indicted and formal proceedings have begun, the cops can
no longer bypass a lawyer and go at you directly, whether you have a lawyer or
not.
6. Escobedo
v.
a.
Facts:
D
was arrested for murder, repeatedly asked to speak to his lawyer, whom he had
already retained. Lawyer arrived at
station and tried unsuccessfully for several hours to speak to
D.
Police ignored, arranged confrontation between
D
and man who had pointed finger at him.
D
made incriminating statements. SC
rev’d conviction.
b.
Reasoning (Goldberg):
i. Note that ACLU brief
made extensive use of police manuals.
ii. Decision has
“accordion-like quality,” says K.
iii.
D
hadn’t been indicted, but when he requested and was denied the opportunity to
speak to lawyer, the investigation ceased to be a general investigation.
D
became the accused. Needed counsel.
“This was the ‘stage when legal aid and advice’ were most critical.”
iv. “We hold… that when the
process shifts 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 his lawyer.”
c.
Stewart, dissenting, distinguished Massiah—here no judicial
proceedings had been initiated against
D.
7. Moving toward a
self-incrimination privilege:
Malloy v. Hogan (1964) (468) (holding that 5th Am’s
Self-Incrimination Clause is incorporated in the Due Process Clause of the 14th
Am and thus applies to the States).
C.
THE MIRANDA “REVOLUTION”
1. MIRANDA v.
ARIZONA (1966) (475)
a.
Facts:
D
arrested for kidnapping, rape.
Questioned by 2 officers w/o being advised of right to have atty present.
Confessed after 2 hours. 3
companion cases featured similar facts.
In Westover,
D
was questioned for 14 hours; in Stewart, 8 or 9 interrogations were
spread over the course of 5 days.
b.
Reasoning (
i. Privacy results in
secrecy. Looks at police manuals,
discussing various tactics like good cop/bad cop (“Mutt and Jeff”), trickery.
ii. Emphasizes that
“interrogation environment is created for no purpose other than to subjugate the
individual to the will of his examiner.
This atmosphere carries its own badge of intimidation.”
Compulsion inherent in custodial surroundings.
K: Ct has limited “custody”
to the stationhouse interrogation room.
Doesn’t extend to questioning on the street, in squad car, etc.
iii. Intimate connection
between 5th Am privilege against self-incrimination and police
custodial questioning. Privilege is
a substantive right—part of privacy; gov’t must respect “the dignity and
integrity of its citizens.”
Privilege is fulfilled only when person is guaranteed the right to remain
silent.
iv. Presence of counsel is a
protective device necessary to make sure cops conform to the dictates of the
privilege. K:
At one place, Ct comes very close to saying that the interrogation must
be recorded, but it backs off.
v. Key ¶ on p. 489.
In order to permit full opportunity to exercise privilege against
self-incrimination, “accused must be adequately and effectively apprised of his
rights and the exercise of those rights must be fully honored.”
vi. Holding: The prosecution
may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination. This includes questioning after a suspect has been deprived
of her freedom in any significant way. The suspect must be informed he has a
right to silence, that his statements may be used against him and that he has
the right to an attorney, retained or appointed.
vi.
Warnings:
a.
Right to remain silent.
Objective inquiry—we won’t consider whether
D
was aware of his rights w/o warning.
Just do it.
b.
Anything you say can and will be used against you.
c.
Right to have counsel preset at interrogation.
d.
If you can’t afford a lawyer, one will be appointed for
you.
vii. Once warnings have
been given, if suspect indicates “in any manner, at any time prior to or during
question, that he wishes to remain silent, the interrogation must cease.”
viii. “Our decision
today in no way creates a constitutional straitjacket.”
Encourages legislatures to experiment.
K: Brennan made
c.
White’s bitter dissent is famous.
This decision has the effect of virtually eliminating confessions and
preventing the conviction of numerous guilty
Ds.
D
can blurt out confession and it’s okay, but if the confession is preceded by a
single question from the cops, it’s inadmissible.
Absurd.
d.
K:
Miranda is a series of holdings:
i. 5th Am
applies to informal as well as formal proceedings.
ii. Privilege applies
to stationhouse coerced confessions.
iii. Must dispel coercion.
iv. This is one way to
neutralize the compulsion. Do this
and you’re okay.
2. Title II of the Omnibus
Crime Control and Safe Streets Act of 1968:
§ 3501
a.
Purported to overrule Miranda.
b. Codifies the voluntariness
test. Trial judge in determining
voluntariness should consider all circumstances surrounding the giving of the
confession. Lists various factors
from Miranda and Escobedo, but those factors “need not be
conclusive.” And the fact that
warnings had or had not been given was considered by judges before Miranda
anyway.
c.
K: By the
time § 3501 reached the Court in Dickerson, a plausible case for upholding it
was established by decisions like Tucker, Quarles, and Elstad,
which called it a “prophylactic rule,” not a constitutional decision.
3.
a.
Facts:
D
arrested for bank robbery. Trial
court suppressed statement on grounds that he had not received Miranda warnings
before interrogation. 4th
Cir. rev’d, holding that Miranda is not a constitutional decision and,
therefore, § 3501’s voluntariness test controls.
SC rev’d.
b.
Holding:
Miranda is a constitutional decision; therefore, that decision and its
progeny, not § 3501, govern the admissibility of statements made during
custodial interrogation in both state and federal court.
c.
Reasoning (Rehnquist):
i. Miranda
concluded that the coercion inherent in custodial interrogation blurs the line
between voluntary and involuntary statements, and thus heightens the risk to the
5th Am privilege against self-incrimination.
Miranda accordingly laid down “concrete constitutional
guidelines.”
ii. Congress intended,
in passing § 3501, to overturn Miranda.
It can’t do that. See
Boerne.
iii. There is language in some
of our opinions that suggests, as the 4th Cir. concluded, that
Miranda isn’t a constitutional decision.
But that’s wrong.
iv. Miranda is a
constitutional decision.
a.
It applied to proceedings in state courts, and since our
supervisory powers don’t reach the States, it could only reach them if
constitutional. Echoes
b.
Language of Miranda itself indicates that
majority thought it was announcing a const’l rule.
c.
Exceptions from Miranda (e.g., Quarles,
Roberson) simply illustrate the principle “that no constitutional rule is
immutable. No court laying down a
general rule can possibly foresee the various circumstances in which counsel
will seek to apply it, and the sort of modifications represented by these cases
are as much a normal part of constitutional law as the original decision.”
d.
We indicated in Miranda that legislatures could try
other solutions, but § 3501’s protections don’t meet the constitutional minimum.
e.
Stare decisis.
“Miranda has become embedded in routine police practice to the
point where the warnings have become part of our national culture”
Sometimes we overrule precedent “when subsequent cases have undermined
their doctrinal underpinnings, [but] we do not believe that this has happened to
the Miranda decision. If
anything, our subsequent cases have reduced the impact of the Miranda
rule on legitimate law enforcement while reaffirming the decision’s core ruling
that unwarned statements may not be used as evidence in the prosecution’s case
in chief.”
d.
K thinks all the cases that cut down Miranda are
still good. Rehnquist wrote the
decision in order to contain the damage that Stevens might have done.
So the Court simply reaffirms Miranda compete with all of its
limitations.
e.
Scalia (joined by Thomas), dissenting.
i. This is
frighteningly antidemocratic.
Majority thinks it has the power not merely to apply the Constitution, but to
expand it.
ii. K:
Scalia makes some good points.
Orozco seemed directly to flow from Miranda, but it’s no longer good law.
(Orozco (1969) excluded statements made outside of
stationhouse. 4 cops questioned
D
in bedroom at 4:00 a.m. Ct said
“potentiality for compulsion” was equivalent to police station interrogation.)
iii. Miranda just
protects against foolish, not compelled, confessions.
Palpable hostility to confessions per se.
iv. Ct has squarely concluded
that a violation of Miranda is not a violation of the Constitution
itself.
v. Stare decisis cuts
both ways. What about Tucker
and Elstad?
vi. Cites North Carolina v.
Pearce (1969) as a true prophylactic rule.
There the Court concluded that due process is offended when judge
vindictively makes sentence more severe because
D
has successfully appealed original conviction.
In order to guard against this, judges must affirmatively state the
reasons for an increased sentence based on objective information.
The Court, says Scalia, doesn’t have this kind of power to prescribe
particular devices. Therefore,
Miranda represents an illegitimate exercise of our authority to review state
court judgments.
4. A Word on Prophylactic
Rules
a.
A prophylactic rule is a rule designed to make a
constitutional provision meaningful and more practical; it provides “breathing
space.”
b.
The new LaFave treatise defines a prophylactic rule as a
preventive measure designed to prevent a constitutional violation rather than to
identify what constitutes a violation.
A per se rule, by contrast, identifies what constitutes a constitutional
violation. K thinks this
distinction breaks down. See, e.g.
McNabb-Mallory.
c.
Strauss calls prophylactic rules “a central and
necessary feature of constitutional law.”
d.
A lot of rules, such as Ashcraft, have been
termed prophylactic in retrospect.
But the Court has been sloppy in its use of the term.
For example, White’s majority opinion in Edwards called its rule
at various times prophylactic and per se.
e.
Dickerson seems to be calling Miranda a
per se rule that identifies a violation.
But it’s not clear.
5. Applying and Explaining
Miranda
a.
Duckworth v. Eagan (1989) (511):
Admitted confession even though warnings were not given word for word and
officer implied that counsel would only be appointed if and when the
D
went to trial. Courts should
examine warnings like construing a will; the inquiry is simply whether the
warnings reasonably convey the Miranda rights.
b.
K thinks suspect should be advised that his silence
cannot be used against him.
c.
d.
Miranda’s “custody” test has replaced
Escobedo’s “focus” test.
i. Footnote 4 in
Miranda said that Escobedo, in saying that right to counsel kicks in
when an investigation focuses on the accused, meant custodial interrogation.
So “focus” is gone.
ii. Beckwith
v.
iii. Stansbury v.
iv. Rule:
Absent special circumstances (such as arresting a suspect at gunpoint
or forcibly subduing him), police questioning “on the street,” in a public
place, or in a person’s home or office is not “custodial.”
Cf. Schneckloth v. Bustamonte (supra p. 30, regarding consent
searches).
v. U.S. v. Mesa
(3d Cir. 1980) (fn a 516-17):
Admitted statements of
D
who barricaded himself in motel room after shooting his wife and daughter and
made incriminating statements over mobile phone to a “hostage negotiator.”
One judge emphasized that
D
was not in custody, that he prevented police from exercising control over him,
and that they didn’t have the opportunity to give him his warnings.
Dissent argued that he was in fact under the immediate control of law
enforcement officials who restrained his movement.
e.
So what constitutes “custodial interrogation?”
i.
ii.
iii. Berkemer
v. McCarty (1984) (518) (
6.
a.
Facts:
D
arrested at 4:30 a.m. for murdering taxi driver.
Advised of rights and placed in back seat of squad car with one officer
in the back seat and two up front.
The two cops up front talked about missing gun, said they were worried that kids
might find it.
D
then interrupted and said he would show them where it was.
Trial court admitted gun and related testimony; RI SC rev’d, concluding
that he was interrogated without valid waiver of Miranda.
b.
Q: Was
D
“interrogated” in violation of Miranda?
Ct: No.
c.
Reasoning (Stewart):
i. Miranda was
concerned that the interrogation environment subjugates the individual’s will.
But that doesn’t mean that all statements obtained by police after person
is in custody are the product of interrogation.
“Interrogation” must reflect a measure of compulsion above and beyond
that inherent in custody itself.
ii. Fn 4 distinguishes
Williams I, characterizing that decision as holding that Massiah
prohibits officers from “deliberately elicit[ing]” incriminating information
from
D
in absence of counsel after formal charge is filed.
Definitions of “interrogation” under 5th and 6th Am
aren’t necessarily interchangeable, since policies are different.
iii. Holding:
“‘[I]nterrogation’ under Miranda refers not only to express questioning,
but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.”
Focuses on perceptions of suspect, not intent of police.
“A practice that the police should know is reasonably likely to evoke an
incriminating response from a suspect thus amounts to interrogation.”
iv. This wasn’t interrogation
under this definition, b/c it was just a dialogue, off-hand remarks.
It was neither express questioning nor the “functional equivalent” of
questioning. Not designed to elicit
a response.
d.
Marshall and Brennan, dissenting:
We like your definition, but not its application.
e.
Stevens, dissenting:
Test shouldn’t be likelihood; it should be whether what the police do has
“the same purpose or effect as a direct question.”
f.
K likes Stevens’s approach more.
K thinks it’s implausible that cops would’ve had this conversation in the
absence of suspect. But K
acknowledges that Court could have done worse in Innis by limiting
“interrogation” to direct questioning.
The gov’t conceded that if police admitted that they inteded to elicit a
response, it would violate Miranda.
But Rehnquist says the opposite in Quarles n.6 (534) (characterizing
Innis as holding that “officer’s subjective intent to incriminate not
determinative of whether “interrogation” occurred.)
g.
K thinks that Innis would have been decided
different had it come after Quarles (in which case Ct would have invoked
public safety exception) and/or Edwards (given that
D
asked for lawyer).
7.
a.
Ct, per Powell, held that it was not custodial
interrogation under Miranda for police to accede to the request of
D’s
wife to speak to
D
in presence of a police officer, who placed a tape recorder in plain sight on a
desk. The officers had tried to
discourage the wife, but she insisted.
Ct doubted whether
D
felt he was being coerced by cops.
b.
K agrees. K
says Miranda is about the impact of the environment on the mind of the suspect.
Interrogation means questioning by an officer or someone known to be a
police agent. Husband was aware
that police were listening.
c.
Dissenters:
Detectives clearly intended to elicit statement, and
D
clearly wished to remain silent.
8.
a.
Facts:
D
was suspected of murder but jailed on other charges.
Cops put two agents—a former cellmate and an undercover officer—in his
cellblock in order to engage
D
in casual conversation and report any incriminating statements.
b.
Q: Does
“custodial interrogation” occur when a secret gov’t agent, posing as a fellow
prisoner, is placed in the same cell or cellblock with an incarcerated suspect
and induces him to discuss the crime?
Ct: No.
c.
Ct (Kennedy):
Miranda warnings aren’t required when suspect is unaware that he is
speaking to a law enforcement officer and gives a voluntary statement.
Coercion is determined from the perspective of the suspect.
No coercive atmosphere.
d.
9.
a.
Facts:
D
arrested for drunk driving. Without
reading Miranda warnings, cop asked him to perform 3 standard field sobriety
tests. Cop then asked seven booking
questions and the birthday question.
Then
D
repeated same sobriety tests.
Throughout, he made incriminating statements and actions.
Finally,
D
refused breathalyzer test.
b. Ct, per Brennan, excluded
only the birthday question.
i. South Dakota v.
Neville (1983) (not mentioned here; see fn a, 521) (holding that “in the
context of an arrest for driving while intoxicated, a police inquiry of whether
the suspect will take a blood-alcohol test is not an interrogation within the
meaning of Miranda.” Similar
to fingerprinting or photography.)
ii. Under Schmerber,
slurred speech and lack of muscular coordination are not testimonial.
And officer’s questions were mostly carefully scripted instructions, not
words or actions constituting interrogation.
iii. But the birthday question
required a testimonial response, and
D
wasn’t really given the option of remaining silent.
10.
a.
Facts: At
12:30 a.m., rape victim told police that
D
had just run into supermarket w/ gun.
Cops pursued
D
to back of store; officer frisked & cuffed him, found that he had an empty
holster, and asked him where gun was w/o giving Miranda warnings.
Surrounded by 4 officers,
D
nodded toward cartons and said, “the gun is over there.”
D
was then read his rights, which he waived before answering questions about gun.
State courts suppressed statements and gun.
SC rev’d.
b.
Reasoning (Rehnquist):
i. Public safety
exception: “We conclude that
under the circumstances involved in this case, overriding considerations of
public safety justify the officer’s failure to provide Miranda warnings
before he asked questions devoted to locating the abandoned weapon.”
ii. Exception doesn’t
depend on officers’ motivations.
“Kaleidoscopic situation” where “spontaneity” controls.
iii. Here, the gun might have
been grabbed and used by an accomplice or found by customer.
iv. Exception circumscribed by
exigency that justifies it; police can “instinctively” distinguish between
interrogation and questions necessary for public safety.
c.
K: There
was no public safety threat here.
Dissent: If there’s really a
threat, then just do what you need to do.
Evidence may be excluded and you may lose conviction, but at least you’ll
abate the threat.
d.
O’Connor’s concurrence/dissent is more important,
because it’s about fruit. She would
have excluded the statement about the gun but not the gun itself, because
“nothing in Miranda or the privilege itself requires exclusion of
nontestimonial evidence derived from informal custodial interrogation.”
e.
Weisselberg (538) says Quarles hasn’t opened the
door to other large exceptions as widely as some initially feared.
He notes that since
11. More on the Public Safety Exception
a.
State v. Finch (
b.
People v. Oquendo (App.Div.NY 1999):
D
kept misleading police, telling them he’d show them where the “BB gun” was but
taking them to the wrong places.
After 5 hours of this, the cops told him that his co-D
told them it was a 9 mm, not a BB gun, and they said if someone found it and got
hurt,
D
was responsible. He finally told
them where it was. Ct said public
safety exception applied, holding that Quarles said “police should have
flexibility to respond to true emergency circumstances, whether the danger is
momentary or ongoing.” Declined to
set artificial time limits.
12. Meeting the “heavy burden” of
demonstrating waiver.
a.
Should tape recordings of the warnings and police
questioning be required? See the
Cassell-Shulhofer debate from the symposium and in the book, 540-42.
b.
c.
Ct has read the waiver req’t rather loosely.
It doesn’t have to be in
writing. See
13. What constitutes an invocation of
Miranda rights? Fare
v. Michael C. (1979) (546):
After being fully advised of Miranda rights,
D,
a juvenile, asked to talk to his probation officer.
Police denied request. Ct
held incriminating statements admissible, holding that the request was not the
same as asking for a lawyer. Test
is totality of circumstances, including age, experience, background, and
intelligence. Ct noted that
probation officer is actually more closely allied to police.
Dissent said that probation officers have a duty to represent minors’
interests and are trusted guardian figures.
14. The Distinction Between the
Right to Remain Silent and the Right to Counsel
a.
“Second level” Miranda safeguards are the
procedures that must be followed when suspects do assert their rights.
The procedures that must be followed depend on whether the suspect has
invoked his right to remain silent or his right to counsel.
b.
c.
Moseley suggests three minimal requirements
for resuming questioning after a suspect asserts his right to remain silent:
i. immediately ceasing
the interrogation;
ii. suspending
questioning entirely for a significant period; and
iii. giving a fresh set of
Miranda warnings at outset of second interrogation.
d.
Edwards v.
i.
D
arrested and taken to station, where he asserted his right to counsel.
Questioning ceased, and
D
remained in jail, w/o seeing counsel, overnight.
Next morning two officers again read him his rights; he waived rights and
made incriminating statements.
ii. Ct (White):
Once a suspect has invoked his right to counsel, he may not be subjected
to further interrogation until counsel has been made available to him, unless he
himself initiates further communication, exchanges, or conversations with the
police.
e.
f.
Minnick v.
i.
D
was refused to sign a waiver form but agreed to answer some of the FBI’s
questions. He then said he would
make a more complete statement w/ lawyer present.
Interview ended, and
D
met w/ appointed counsel on 2 or 3 occasions.
Then a state sheriff questioned him, and he declined to sign waiver form
but made incriminating statements.
ii. Does the Edwards
protection cease once the suspect has consulted with an attorney?
Ct: No.
iii. Reasoning (Kennedy):
Edwards draws a bright line barring police-initiated interrogation
unless the accused has counsel with him at the time of questioning.
“[W]e now hold that when counsel is requested, interrogation must cease,
and officials may not reinitiate interrogation without counsel present, whether
or not the accused as consulted with an attorney.”
Allowing Edwards’ protection to pass in and out of existence would
be too confusing.
iv. Scalia, joined by
Rehnquist, dissenting: This makes
waiver impossible. “[P]rophylaxis
built on prophylaxis, producing a veritable fairyland castle of imagined
constitutional restriction upon law enforcement.”
Ct is trying to protect stupid people from their own folly.
Either Moseley is wrong or Edwards is wrong; they can’t
both be right.
v. K doesn’t understand
Minnick. Why isn’t it enough
that they honored his request for a lawyer?
15. When does the “question-proof”
status end? What constitutes
“initiating” further communication with the police?
a.
Magid (557):Miranda and its progeny do not require that an inmate
who has invoked his right to counsel remain forever question-proof.
She thinks an inmate who has been sentenced and has settled into routine
prison life is not in Miranda custody, and should only be considered in
Miranda custody when some additional restraint beyond prison life is
imposed.
b.
i. Facts:
D
invoked right to counsel. Officers
terminated conversation, but while squad car,
D
asked, “Well, what is going to happen to me now?”
Officer reiterated right to remain silent, but then conversed w/
D
and invited him to take lie-detector test.
Next day,
D
given warnings, failed polygraph, and confessed.
Court, in splintered opinion, held that
D
could not avail himself of Edwards.
ii. Rehnquist, for
plurality, said some inquiries, like a request for a drink of water or a request
to use the phone—i.e., statements “incident to the custodial relationship—are so
routine that they don’t fairly indicate a desire on the part of the accused to
discuss the investigation. But
D’s
ambiguous statement can fairly be viewed as evincing a desire for a generalized
discussion of the investigation.
Since there was a valid waiver, this is admissible.
Thus, Rehnquist used a two-step analysis:
(1) Did suspect initiate a
conversation? (2) If so, was there,
in light of the totality of the circumstances, a valid waiver?
iii. Dissenters said
D
was responding to his custodial surroundings.
iv. K says the question should
be whether the suspect’s statement or question is related to the merits of the
case against him—e.g., if suspect asked, “What kind of evidence do you have
against me?” K also says that
administrative questioning is okay.
16. How direct, assertive, &
unambiguous does suspect have to be to invoke right to counsel?
a.
i. Facts:
D
questioned about a murder for an hour and a half before he said, “Maybe I should
talk to a lawyer.” Agents tried to
clarify whether he was actually requesting counsel, and he said, “No, I don’t
want a lawyer.” After a short
break, questioning resumed for an hour, and
D
again said, “I think I want a lawyer.”
Questioning then ceased, but prior incriminating statements were
admitted. SC aff’d the conviction.
ii. Court (O’Connor):
Edwards requires an objective inquiry into whether
D
actually invoked his right to counsel.
Questioning doesn’t have to cease when
D
makes an ambiguous or equivocal reference to an attorney.
Suspect must unambiguously request counsel; “he must articulate his
desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for
an attorney.”
iii. Souter, in a separate
opinion affirming the conviction, called for a “rule barring gov’t agents from
further interrogation until they determine whether a suspect’s ambiguous
statement was meant as a request for counsel.”
iv. K likes Souter’s rule a
lot, and he says that the agents did clarify here, so the majority didn’t need
to decide something not before them.
K also says that you could read
b.
Meuller v. Commonwealth (
17. Applying Edwards to the Sixth
Amendment Right to Counsel
a.
b.
McNeil v.
i. Facts:
D,
following arrest for crime #1, appeared at bail hearing w/ counsel.
On several subsequent occasions, he was interrogated about crime #2 and
made incriminating statements. SC
aff’d conviction.
ii. Reasoning (Scalia):
a.
Suspect’s assertion of his 6th Am right to
counsel did not serve as an invocation of his 5th Am-based
Miranda-Edwards-Roberson right to have counsel present during custodial
interrogation. Thus, 6th
Am right protects suspect from police-initiated questioning w/o counsel about
the crime w/ which he is charged, but not about unrelated, uncharged crimes.
b.
6th Am is offense-specific; doesn’t attach
until prosecution is commenced. So
also its
c.
Purpose of 6th Am right is to protect layman
during confrontations with gov’t after adversarial positions have solidified w/
respect to particular crime. The 5th
Am Edwards right is different—it’s designed to protect the suspect’s
desire to deal w/ the police only through counsel.
d.
“Our system of justice is, and has always been, an
inquisitorial one at the investigatory stage.”
e.
Fn 3: “We
have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than ‘custodial interrogation.’”
K says this indicates that you can’t assert your rights before the
warnings. K thinks it depends on
the temporal proximity to the warnings; should be very close to time when
warning should be delivered.
iii. Dissent:
This demeans the importance of the right to counsel.
c.
Relying heavily on footnote 3, most lower courts have
balked at the notion that Miranda-Edwards protections can be triggered
anticipatorily. But they have left
open the possibility that a suspect might be able to invike the
Miranda-Edwards right to counsel if custodial interrogation is about to
begin or is “imminent.” See 570.
18. Moran v. Burbine (1986)
(571)
a.
Facts:
While
D
was in custody, his sister, unbeknownst to him, retained counsel for him.
Atty called police station and was told that he wouldn’t be questioned
until next day. But interrogation
by different police commenced later that evening.
(There was no collusion.)
D
was properly Mirandized, signed waivers, and confessed.
SC held his confession to be admissible.
b.
Reasoning (O’Connor):
i. Police followed
Miranda; they just failed to inform him of the atty’s phone call.
ii. Waiver must be
knowing, intelligent, and voluntary.
The inquiry has two dimensions:
a.
Must be product of a free and deliberate choice rather
than intimidation, coercion, or deception.
b.
Must be made with full awareness both of nature of right
being abandoned and consequences of decision to abandon it.
iii. “Events occurring
outside of the presence of the suspect and entirely unknown to him surely can
have no bearing on the capacity to comprehend and knowingly relinquish a
constitutional right.”
iv. Police state of
mind is irrelevant.
v. Info would have been
useful to
D;
it may even have affected his decision.
But Const. doesn’t require that police to supply suspect w/ constant flow
of info.
vi. And we can’t define
right in terms of police conduct toward attorney, b/c that conduct has no
bearing on the degree of compulsion experienced by the
D
during interrogation.
vii. Fn 4:
Miranda “embodies a carefully crafted balance designed to fully
protect both the
D’s
and society’s interest.” K:
This is the way Miranda’s defenders have been talking about
Miranda for years.
c.
Dissent (Stevens): Court is
now embracing incommunicado questioning.
Rule should be that police have to inform suspect of atty’s efforts to
contact him.
d.
K says “incommunicado” is a dirty word.
He’s not really incommunicado; his family knows where he is, and he could
call if he wanted. K also
distinguishes Escobedo, because there the
D
knew his lawyer was outside. If
this came out the other way, public defender could just say he represents all
Ds.
19. Use of Psychiatric Examinations in
Proceedings
a.
Estelle v. Smith (1981) (582):
State announced before trial that it would seek death penalty.
Judge ordered psychiatric examination of
D,
who was examined w/o his counsel’s permission and w/o being told he had right to
remain silent. Psychiatrist then
testified not only to
D’s
capacity to stand trial, but also to his “future dangerousness,” a critical
sentencing issue. SC, per Burger,
held that
D’s
5th and 6th Am rights were violated.
“Just as the 5th Am prevents a criminal
D
from being made ‘the deluded instrument of his own conviction,’ it protects him
as well from being made the ‘deluded instrument’ of his own conviction.”
Court was unanimous on the Massiah 6th Am issue, but
Rehnquist dissented on 5th Am grounds.
b.
Allen v.
20. Confessions by juveniles
a.
State v. Presha (2000) (46):
D,
16, was brought to prosecutor’s office at
b.
In re G.O. v. G.O. (
c.
Compare Fare, supra p. 54.
21. Withrow v. Williams
(1993) (583)
a.
Facts:
D
not Mirandized; incriminating statements admitted in state court.
D
turned to federal courts; district court held that his Miranda rights
were violated.
b.
Q: Does
Stone bar federal habeas review of Miranda claims?
Ct: No.
c.
Reasoning (Souter):
i. Stone v. Powell
(1976) held that when a State has given a full and fiar chance to litigate a 4th
Am claim, federal habeas review is not available to a State prisoner alleging
that his conviction rests on evidence obtained through an unconstitutional
search and seizure.
ii. We have repeatedly
declined to extend Stone in other contexts.
Stone is limited to 4th Am, which confers no trial
right, whereas 6th Am confers a fundamental right that assures the
legitimacy of adversarial process.
iii. Stone was based on
the Mapp rule, which is not a personal constitutional right, but is
prophylactic. Miranda is
different, because it safeguards a trial right.
d.
O’Connor, dissenting (w/ Rehnquist):
Substantial costs.
Suppression of voluntary statements is not a fundamental trial right.
e.
Scalia (w/ Thomas):
“Prior opportunity to litigate an issue should be an important equitable
consideration in any habeas case, and should ordinarily preclude the court from
reaching the merits of a claim, unless it goes to the fairness of the trial
process or to the accuracy of the ultimate result.”
Emphasizes federalism.
f.
Note that several cases have held that 5th Am
violations occur not only in the trial context, but also when witnesses testify,
for example, before grand juries.
D. THE “DUE
PROCESS”–“VOLUNTARINESS TEST REVISITED
1. The Survival of the
Old Tests
a.
Although some may believe that Miranda displaced the due
process-totality of the circumstances-voluntariness test, it’s still around in a
number of contexts.
b.
In the first place, most suspects waive Miranda, so
their confessions are judged by the voluntariness test.
c.
Voluntariness test is also used when suspects not in
custody are questioned by the police; when suspects in a custody-like situation
are questioned (or threatened) by private citizens; or when prosecution seeks to
impeach or use fruits. (Note that
involuntary statements cannot be used for impeachment purposes, and fruit of an
involuntary statement may not be admissible either.)
d.
Many lower courts have held that a confession is
admissible even when obtained by trickery and deceit, provided that the trickery
does not “shock the conscience” or is not apt to induce a false confession.
e.
Welsh White (602) thinks several widely used
interrogation tactics should be absolutely prohibited.
2.
Miller v. Fenton (3d Cir. 1986) (602)
a.
Facts:
D,
prime suspect in brutal murder case, signed Miranda card.
A 53-minute interrogation ensued, which the police taped.
(Thus a transcript was available to the court.)
One of the interrogators, Detective Boyce, was highly sympathetic,
calling himself
D’s
brother, saying
D
had mental problems and needed help, appealing to
D’s
conscience, etc. Boyce also lied
about certain facts. When
D
at last confessed, he collapsed in a state of shock and had to be taken to the
hospital.
b.
3d Cir., per Becker, admitted the confession.
Since
D
had been properly Mirandized, the question, as Becker framed it, was whether
Boyce’s tactics were sufficiently manipulative to overbear the will of a person
w/
D’s
characteristics. Becker concluded
that the confession was “voluntarily given” after considering the “totality of
the circumstances”: mature,
32-year-old adult; prior jail sentence; less than 1 hours; “good guy” approach
is permissible; lying about timing of death wasn’t sufficient trickery to
overcome will; leniency wasn’t promised.
Free choice.
c.
Dissent included portions of transcript.
Majority doesn’t even include the fact that
D
collapsed in a catatonic state in its totality-of-the-circumstances approach.
3. Police Trickery
a.
Frazier v. Cupp (1969) (fn a, 601):
Admitted a confession in a pre-Miranda case although the police had
falsely told
D
than someone else had confessed and also “sympathetically” suggested that
victim’s homosexual advances may have started the fight.
Otherwise, however, the interrogators’ behavior, claims a Stanford Note,
was “exemplary.” Police trickery
is just one factor in totality test.
b.
State v. Cayward (Fla.App. 1989) (612):
Upheld the suppression of confession obtained after police showed
D
a fabricated laboratory report indicating they found his semen stains on the
victim’s underwear.
c.
i. Facts:
After
D’s
stepdaughter was murdered, he was convicted of an unrelated federal offense and
incarcerated. A paid FBI informant
befriended him and eventually elicited a confession after he said that he would
protect
D
from his fellow inmates if
D
told him about murder. AZ SC threw
it out.
ii. Reasoning (White):
Totality of the circumstances test.
AZ SC found a “credible threat of violence” resulting in “extreme
coercion.” “[A] finding of coercion
need not depend on actual violence by a gov’t agent; a credible threat is
sufficient.”
iii. Court also abandoned the
“rule of automatic reversal,” which had held that no conviction based in any
part on a coerced confession could stand.
Court now performs case-by-case inquiry.
iv. Dissent disagreed with
this factual finding.
4.
a.
Facts:
D
flew from
b.
Reasoning (Rehnquist):
i. Coercive police
activity is a necessary predicate to finding that a confession isn’t voluntary
under DPC. Absent police conduct
causally related to the confession, there is not basis for concluding that any
state actor deprived
D
of due process.
ii. Prior cases all
involved police overreaching. See,
e.g., Townsend v. Sain (suppressing confession of
D
who, because he was suffering from severe heroin withdrawal symptoms, was
injected by a police doctor with a drug that had the properties of a “truth
serum”; doctor and police interrogators didn’t know about these properties, but
Rehnquist nonetheless characterizes it as a case of “police wrongdoing.”)
iii. Purpose of suppression is
deterrence, which wouldn’t be served here.
c.
Dissent:
“Surely in the present stage of our civilization a most basic sense of justice
is affronted by the spectacle of incarcerating a human being upon the basis of a
statement he made while insane.”
Focus on reliability. No
corroboration.
d.
White (618) says that Connelly can be read
narrowly: police exerted no pressure and had no reason to believe
D
was suffering from mental disability.
So police conduct wasn’t not implicated, and they did not exploit a known
weakness.
1. Brewer v.
Williams (Williams I) (1977) (619)
a.
Facts:
“Christian burial speech case.”
D
accused of kidnapping and murdering girl at YMCA.
He was arraigned in
b.
Q: Was
D
deprived of his constitutional right to the assistance of counsel?
Ct: Yes.
c.
Reasoning (Stewart):
i. Right to counsel
means at least that a person is entitled to the help of a lawyer at or after the
time that judicial proceedings have been initiated against him, “whether by way
of formal charge, preliminary hearing, indictment, information, or arraignment.”
ii. “Leaming
deliberately and designedly set out to elicit information from Williams just as
surely as—and perhaps more effectively than—if he had formally interrogated
him.”
iii. These circumstances are
constitutionally indistinguishable from Massiah.
Note Stewart’s statement of the Massiah rule in Innis, supra p.
51: Once adversary proceedings
have commenced against an individual, he has a right to counsel when the gov’t
deliberately elicits information from him, whether or not the gov’t’s conduct
constitutes “interrogation” under Miranda.
iv. Waiver requires “an
intentional relinquishment or abandonment of a known right or privilege.”
Johnson v. Zerbst. No
waiver here.
v. In fn 12, Court
suggests that inevitable discovery doctrine might let body in.
d.
Dissenters said
D
waived his rights. White says Court
is assuming that Massiah, as opposed to Miranda, includes a right
not to be asked questions rather than a right not to answer.
e.
K: Three
scenarios (“Mother Power,” “Weather Forecaster,” and “Waitress” Ploys)
i.
Distinguishable from Miranda because
D
in K’s hypos didn’t know that people were police agents.
Miranda is about the impact on the suspect’s mind that matters.
Innis assumes guy knows cops are there.
(K has a tougher time with the fake priest, but he says there are some
things that the cops just can’t do.)
ii.
More importantly, these hypos are distinguishable from Williams I b/c
they remove Massiah from the equation.
Once
D
is indicted and arraigned, all three are inadmissible.
As far as Massiah is concerned, there doesn’t have to be interrogation to
produce a violation; it’s enough if cops attempt to elicit info.
K thinks Williams I would’ve been an easier case if it had come
after Edwards, which focuses not on whether it was interrogation, but
simply whether his right to counsel was violated.
f.
K notes that there were two versions of the Christian
burial speech in the record. See
footnotes. K also says there’s an
assumption in Williams I that Massiah rights can, like Miranda
rights, be waived. Patterson
confirms that, but K doesn’t think the
2. Patterson
v.
a.
Facts:
D
and 2 fellow gang members were indicted for murder.
As
D
was being transferred to jail, he asked officer who else was indicted; when
officer answered,
D
asked why someone else wasn’t indicted, saying, “he did everything.”
D
then signed waiver form and made a lengthy incriminating statement.
SC aff’d conviction.
b.
Reasoning (White): Same
standards apply for waiving the 5th and 6th Am rights.
Waiver of 5th Am-Miranda rights is sufficient to
constitute waiver of 6th Am-Massiah rights.
6th Am right is not superior to 5th Am right.
Miranda warnings sufficiently apprised
D
of his right to have counsel present.
c.
Stevens, dissenting, pointed to
i. Note that the “no
contact rule” has not been strongly applied in the criminal context.
See 632-33.
3.
4. “Passive” v. “Active”
Secret Agents
a.
U.S. v. Henry (1980) (635):
Ct, per Burger, suppressed statements made when an FBI informant, posing
as
D’s
cellmate, was instructed by FBI not to question
D
about the crime, and there was no showing that he had.
Court said that informant was “not a passive listener”; statements were
product of agent’s “conversations” w/
D.
Such propinquity was likely to result in agent taking affirmative steps
to obtain incriminating info. K
calls Henry Massiah’s “high-water mark.”
b.
Kuhlmann v.
i. Facts:
D’s
cellmate, Lee, was a plant who was supposed to “keep his ears open” w/o asking
any questions.
D
talked to Lee w/o changing the story he had given police, but when
D’s
brother visited,
D
changed his story and confessed to Lee.
SC aff’d conviction.
ii. Reasoning (Powell):
Distinguished Henry by saying the agent there had “stimulated”
conversations w/
D
in order to “elicit” info, amounting to “indirect and surreptitious”
interrogation. Informant must
take some action, beyond merely listening, that is designed deliberately to
elicit incriminating remarks.
That didn’t happen here.
iii. Burger, concurring, noted
“a vast difference between placing an ‘ear’ in the suspect’s cell and placing a
voice in the cell to encourage conversation for the ‘ear’ to record.”
K: You can’t separate ear
from voice.
iv. K:
It’s not easy to reconcile Henry and Kuhlmann.
Could say that Ct just defers to trial court.
Or could look at causation—visit from
D’s
brother makes difference.
V.
LINEUPS, SHOWUPS, & PRETRIAL IDENTIFICATION PROCEDURES
A. CONSTITUTIONAL CONCERN
ABOUT EYEWITNESS IDENTIFICATIONS
1.
a.
D
was indicted and arrested for armed robbery; counsel was appointed.
FBI, w/o notice to
D’s
lawyer, arranged a lineup. Two
witnesses identified
D.
The witnesses then pointed to
D
during the trial. Convicted.
b.
Q: Should
courtroom identifications of an accused at trial be excluded from evidence
because the accused was exhibited to the witnesses before trial at a
post-indictment lineup conducted for identifications purposes without notice to
and in the absence of the accused’s appointed counsel?
Ct: Yes.
c.
Reasoning (Brennan):
i. Ct first concluded,
relying on Schmerber, that neither requiring a person to appear in a
lineup and to speak for identification (Wade) nor requiring a person to
provide handwriting exemplars (Gilbert) violated the privilege against
self-incrimination.
Self-incrimination clause only protects person from testifying against himself
or otherwise providing the State with evidence of a testimonial or communicative
nature.
ii. Powell v.
iii. Lineups are riddled w/
innumerable dangers and variable factors that might seriously derogate from a
fair trial. Problems of eyewitness
identification can be magnified by the way the prosecution presents the suspect
to witnesses. Can be highly
suggestive.
iv. Witness who identifies the
accused in a lineup isn’t likely to change her mind.
v. Lineup is a
“critical stage” of pretrial process.
Gilbert, however, held that taking handwriting exemplars is not a
“critical” stage entitling
D
to assistance of counsel. More
easily corrected than misidentifications.
vi. First line of defense
against unfair identifications at trial is the lessening of the hazards of
eyewitness i.d. at lineup itself.
Counsel should be “a requisite to conduct of the lineup, absent an ‘intelligent
waiver.’”
vii.
These cases show the room for abuse and suggestion:
Gilbert was conducted in auditorium where 100 witnesses identified
him while talking to each other. In
Stovall, suspect was presented, in handcuffs, to witness in her hospital
room.
D
was the only black person in the room, and he was surrounded by 4 cops.
viii.
Gov’t must show by clear and convincing evidence that the in-court
identifications were based upon observations of the suspect rather than the
lineup identification. Proper test
is the Wong Sun test:
“whether, granting establishment of the primary illegality[,] the evidence to
which instant objection is made has been come at by exploitation of that
illegality or instead by means sufficiently indistinguishable to be purged of
the primary taint.”
b. White, dissenting,
predicted that attorneys would be obstreperous at lineups.
2. The Meaning of the
Lineup Decisions
a.
Attorneys at lineups generally play the role of a
passive observer to ensure against abuse, contrary to White’s prediction.
b.
Since the lineup and taking of exemplars aren’t
protected by privilege against self-incrimination clause, the prosecution can
comment on suspect’s refusal to cooperate.
c.
When confronted w/ invalid pretrial identifications,
lower courts have easily found an “independent source” for an in-court
identification.
d.
e.
Some commentators have suggested using “blank”
lineup—i.e., conduct two separate lineups, one of which does not contain the
suspect.
f.
Cautionary instructions on eyewitness testimony are
ineffective.
g.
All the psychiatric literature indicates that accuracy
of eyewitness identification is not related to confidence.
3. Stovall v.
Denno (1967): Held that
Wade-Gilbert rule did not apply retroactively; instead, the backup test for
pre-Wade-Gilbert cases should be a totality-of-the-circumstances due
process test that consider whether “the confrontation conducted in this case was
so unnecessarily suggestive and conducive to irreparable mistaken
identification” that
D
was denied due process. Simmons
restated this test as whether the i.d. was “so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.”
4.
Title II of the Omnibus Crime Control and Safe Streets Act of 1968, §
3502, purported to repeal the Wade-Gilbert rule in federal cases, but the
lower federal courts have largely ignored it.
B. THE COURT RETREATS
1. Kirby
v.
a.
Q: Does the
Wade-Gilbert rule extend to identification testimony based on a police
station showup that took place before
D
had been indicted or otherwise formally charged?
Ct: No.
b.
Reasoning (Stewart, for four justices; Powell
concurred):
i. Right to counsel
attaches only at or after the time that adversary judicial proceedings have been
initiated, “whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.”
ii. Escobedo is
different, but it dealt with privilege against self-incrimination, not the right
to counsel, and we have limited it to its own facts.
iii. We decline to impose a
per se exclusionary rule upon testimony concerning an identification that took
place long before prosecution commenced.
Stovall strikes the appropriate balance.
c.
Brennan’s dissent:
Wade was about protecting
D’s
constitutional rights to confrontation and effective assistance of counsel at
trial. Same hazards to a fair trial
inhere whether lineup occurs before or after indictment.
This showup was particularly fraught w/ peril of mistaken identification.
d.
White (in what K considers the most devastating dissent
ever): “Wade and Gilbert
govern this case and compel reversal of the judgment below.”
2.
a.
Facts:
Before trial, but after
D
had been incarcerated and appointed counsel, gov’t, w/o notifying counsel,
showed 5 color photos to 4 witnesses who had previously identified a
black-and-white photo of
D.
b.
Q: Must
D’s
lawyer be present at a photographic lineup?
Ct: No.
c.
Reasoning (Blackmun):
Right to counsel means the right of the accused to have counsel act as
his spokesman, advisor, or assistant.
Since accused himself wasn’t present at photographic display, and asserts
no right to be present, his right to counsel isn’t implicated, because it’s not
possible for his lack of familiarity with the law to be overpowered by his
professional adversary. Defense
counsel can seek and interview the witnesses himself.
“The primary safeguard against abuses of this kind is the ethical
responsibility of the prosecutor, who, as so often has been said, may “strike
hard blows” but not “foul ones.” If
that safeguards fails, due process standards provide a backup.
d.
Brennan, dissenting:
“Wade envisioned counsel’s function at the lineup to be primarily
that of a trained observer.”
e.
K says the lineup cases were wiped out in Kirby
and Ash.
C. DUE PROCESS AND OTHER
LIMITATIONS
1. See Stovall,
suprra p. 63.
2. Neil v.
Biggers (1972): Rape victim
identified
D
in a one-person stationhouse showup seven months after the crime.
Nonetheless, the Ct applied the totality test and found that
identification was reliable confrontation was suggestive.
As Manson (below) stated the Biggers standard:
“The admission of testimony concerning a suggestive and unnecessary
identification procedure does not violate due process so long as the
identification possesses sufficient aspects of reliability.”
(Note that Biggers involved a pre-Stovall identification.)
3. Manson
v. Brathwaite (1977) (665)
a.
Facts: G, a
black undercover police officer, purchased drugs from seller through open
doorway of apt. Based on encounter,
which lasted 2-3 minutes, G described seller to fellow officer, and later
D
identified a single black-and-white photo of
D
as the seller.
b.
Q: Does
Biggers apply to post-Stovall confrontations as well as those pre-Stovall?
Ct: Yes.
c.
Reasoning (Blackmun):
i. Since Biggers, the
lower courts have developed two different approaches.
One excludes all out-of-court identifications, w/o regard to reliability,
that involved unnecessarily suggestive procedures.
The second approach relies on the totality of the circumstances, is more
lenient and ad hoc, allowing admission of confrontation evidence if, despite the
suggestive aspect, it possess certain features of reliability.
We like the second approach.
ii. Concerns:
problems of eyewitness identification; deterrence; effect on
administration of justice.
iii. Reliability is the
linchpin in determining admissibility.
Factors to consider:
opportunity of witness to observe criminal at time of crime; witness’s degree of
attention; accuracy of prior description; level of certainty; time between crime
and confrontation.
iv. Upon considering these
factors, Court let this identification in.
4. Detention for
Identification Procedures in the Absence of Probable Cause
a.
b.
Hayes v. Florida (1985) (673; supra p.
28): Ct held that transporting a
suspect to the police station w/o PC violated 4th Am, but
reserved possibility, as in Davis, that brief detention in the field
for fingerprinting w/ reasonable suspicion, not PC, might pass
constitutional muster. This might
also be judicially authorized.
c.
Court have generally found no 4th Am
violation when a person lawfully in custody for one crime is ordered into a
lineup for other crimes for which there is no PC to arrest him/her.
But some courts require reasonable suspicion in these circumstances.
VI.
THE EXCLUSIONARY RULE & “FRUIT OF THE POISONOUS TREE”
A. Historical Background
and Overview
1. Genesis of the
rule: Silverthorne Lumber
(1920) (Holmes, J.): Ct said that
the “essence” of forbidding gov’t from obtaining evidence in certain ways is
that the evidence should “not be used at all.”
This doesn’t make the evidence “sacred and inaccessible”:
knowledge gained from an “independent source” can be proved like
any other info.
2. The doctrine of
attenuation: Nardone
(1939): Frankfurter first used
“fruit” phrase. Also established
the “attenuation doctrine”—where challenged evidence did not have an
“independent source,” it may still be admissible if the causal connection
between the information obtained and the gov’t’s conduct is “so attenuated as
to dissipate the taint.”
3. Wong Sun
v.
4. Confession as the
“fruit” of an illegal arrest.
a.
Brown v.
b.
Dunaway v.
c.
Taylor v. Alabama (1982) (789):
Held that
D’s
confession was the impermissible fruit of his illegal arrest even though six
hours elapsed between arrest and confession,
D
was Mirandized three times, and he was allowed to visit briefly w/ girlfriend
and neighbor before confession.
d.
Rawlings v.
5. Identification of a
person as a “fruit” of an illegal arrest.
6.
a.
Facts:
Police arrested
D
in his home w/ PC but w/o warrant.
D
waived Miranda rights and
D
confessed. He was then taken to
stationhouse, where he signed waiver form and confession.
SC excluded the first confession, but not the second.
b.
Reasoning (White):
i.
Holding: Where the police
have PC to arrest a suspect, the exclusionary rule does not bar the use of a
statement made by the suspect outside his home even though the statement is
obtained after an in-house arrest in violation of Payton.
ii. Payton is
designed to protect physical integrity of home.
A Payton violation doesn’t necessarily render unlawful the continued
custody of the suspect once he is removed from the house.
D
wasn’t unlawfully in custody when he was in stationhouse.
iii. This case is like
Crews. Attenuated.
iv. Payton only
excludes evidence taken or statements made inside the home during a warrantless
arrest. That’s a sufficient
deterrent.
7. Warrant search as
fruit of illegal entry and occupation of premises.
a.
Segura v. U.S. (1984) (793):
Admitted evidence obtained pursuant to warrant where officers entered
suspect’s apt illegally and stayed in apt for 19 hours while warrant was
obtained. Ct:
There was an independent source for the warrant.
b.
Murray v. U.S. (1988) (794):
Held that evidence observed by police during an illegal entry need not be
excluded if such evidence is subsequently discovered during the execution of an
otherwise valid search warrant sought and issued on the basis of information
wholly unconnected to the prior entry.
Ct emphasized that second entry was independent of the first; if warrant
had issued on basis of what agents had seen during illegal entry, evidence would
be excluded. K:
How do you know whether it was prompted by what the police saw?
8. The “tainted” witness.
9. Standing.
Does A have standing to challenge the fruits of an illegal search of B’s
belongings when those fruits are used against A?
Ct: No.
K thinks this doctrine should be eliminated.
It’s not really explained by the deterrence theory, which has become the
dominant theory of the ER. An
overnight guest has sufficient involvement to have standing, but Minnesota v.
Carter says that a guy who had just dropped in to sell some drugs didn’t
have standing.
B. The “Inevitable
Discovery” Doctrine
1. Even if a but-for test
can’t be satisfied, the challenged evidence is admissible if the gov’t learned
of the evidence from an independent source.
A variation on the independent source doctrine is the “inevitable
discovery” or “hypothetical independent source” doctrine, which asks
not whether the police actually acquired certain evidence by reliance on an
independent source, but whether evidence in fact obtained illegally would
inevitably or eventually or probably have been discovered lawfully.
2. Nix v. Williams (Williams
II) (1984) (797)
a.
Facts:
Sequel to Williams I (supra p. 60).
b.
Q: Is the
evidence of the body and its condition admissible, despite the Massiah
violation, under the inevitable discovery doctrine?
Ct: Yes.
c.
Ct (Burger):
Same justification as independent source doctrine—deterrence.
The burden of proof is on the prosecution by a preponderance of the
evidence. No good faith req’t.
This would inevitably have been discovered.
3. Must the independent line
of investigation already be underway?
Brennan and Stevens appear to think so in their Williams II
dissents, but that’s not clear.
4. Williams II applied
the exception to secondary or derivative evidence, but most courts have also
applied the exception to primary evidence—i.e., evidence discovered during the
course of the search itself.
C. Is a Confession
Obtained in Violation of Miranda a “Poisonous Tree”?
1. O’Connor, in her
Quarles concurrence, would have suppressed the statement but not the gun.
“Only the introduction of the defendant’s own testimony is
proscribed by the 5th Am’s mandate…
That mandate does not protect an accused from being compelled to
surrender nontestimonial evidence against himself.”
Cites Schmerber.
Derivative evidence should be admitted.
2.
a.
Facts: Cops
went to 18-yr-old
D’s
home w/ arrest warrant. Before
telling him about warrant, they asked him if he was involved in burglary.
He said, “Yes, I was there.”
D
was then taken to station and Mirandized.
He confessed. State conceded
that statement in house was in violation of Miranda but argued that taint had
dissipated prior to written confession.
SC agreed.
b.
Q: Does an
initial failure of law enforcement officers to administer Miranda
warnings, without more, “taint” subsequent admissions made after a suspect has
been fully advised of and has waived his Miranda rights?
Ct: No.
c.
Reasoning (O’Connor):
i. A procedural
Miranda violation differs significantly from a 4th Am violation.
4th Am mandates a broad application of the “fruits” doctrine,
but Miranda does not require that statements and their fruits be discarded as
inherently tainted.
ii.
iii. Following Tucker’s
rationales, Ct said that the absence of coercion or improper does not call for
suppression. “Once warned, the
suspect is free to exercise his own volition in deciding whether or not to make
a statement to the authorities.
iv. Although Miranda requires
suppression of unwarned admissions, the admissibility of any subsequent
statement turns on whether it was knowingly and voluntarily made.
It was here.
v.
D
doesn’t have to be told that his earlier admissions are inadmissible. “Police
officers are ill-equipped to pinch-hit for counsel.”
d.
K:
O’Connor’s language intimates that physical evidence, not just statements, may
be admitted under Elstad, but Court has never said that.
Dissent says the same thing, fearing the Court has let the cat out of the
bag.
D. Use of Illegally
Obtained Evidence for Impeachment Purposes
1. The Expansion of
a Once-Narrow Exception
a.
Walder v.
b.
Harris v.
c.
d.
People v. Peevy (CA 1998):
Harris-Haas exception applies even when a police officer deliberately
fails to honor a suspect’s request for counsel for the very purpose of obtaining
evidence for impeachment purposes.
Because it was raised untimely below, CA SC didn’t reach the fact that it was
police department policy to violate Miranda—to “go outside of Miranda”—in
order to obtain impeachment evidence.
Mosk, dissenting, said that deterrent rationale has no value where the
dept has established a bad faith policy.
(See transcript of
e.
f.
James v.
2. What kinds of
constitutional or other violations does the impeachment exception encompass?
a.
b.
Mincey v.
c.
3. Use of Defendant’s Prior
Silence for Impeachment Purposes
a.
Doyle v.
b.
Grier v. Miller (1987) (823):
D
remained silent after Miranda warnings.
On direct, he testified that he had taken no part in crimes; prosecutor
asked on cross, “Why didn’t you tell that story to anyone when you got
arrested?” Trial judge sustained
D’s
objection and instructed jury to ignore it.
D
convicted. Federal appellate ct
granted habeas relief on ground that error was not harmless.
SC rev’d. Ct:
No violation of Doyle occurred b/c trial ct didn’t allow the
inquiry. Dissent protested that
decision sapped Doyle of its vitality.
c.
Jenkins v.
d.
Fletcher v. Weir (1982) (per curiam) (824):
Silence may be used against a
D
who was not Mirandized. In the
absence of affirmative Miranda warnings, a state may permit cross-examination
about post-arrest silence when a
D
chooses to take the stand.
e.
Combs v. Coyle (6th Cir. 2000) (66):
Addressing a deep circuit split, the 6th Cir. held that the
use of prearrest silence as substantive evidence of guilt violates the
privilege against self-incrimination.
(D
claimed that, as a result of intoxication, he lacked the requisite intent.
Prosecution introduced statement, “Talk to my lawyer,” which judge
limited with the instruction that the jury should only consider it “as it
relates to the purpose and prior calculations and design.”)
4. Use of Post-Miranda
Warnings Silence or Assertion of Rights to Rebut Insanity Defense.
Wainright v.