criminal justice - cole spring 2011 outline.docx

8/14/2019 Criminal Justice - Cole Spring 2011 Outline.docx

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CRIMINAL JUSTICE, Professor Cole, Spring 2011

Steps in the Criminal Procedure Process

1. Pre-arrest investigation2. Arrest3. Post-Arrest Investigation4. The Decision to Charge5. Filing the Complaint w/magistrate court

6. Magistrate review of the arrest (Gersteinreview if no arrest warrant)7. The First Appearance in front of magistrate; informed of right to counsel, but dont always havecounsel depending on the jurisdiction8. Preliminary Hearing magistrate looks at evidence to decide if case should be sent forward9. Grand Jury Review only in Js where felony prosecutions must be initiated by indictment

Jury decides if prosecution has enough evidence to proceed w/case10. Filing of the Indictment11. Arraignment D pleads guilty or not12. Pretrial Motions to suppress evidence, etc.13. Pretrial Discovery14. Guilty Plea Negotiation and Acceptance15. Trial16. Sentencing usually by the judge = fine, release, jail or prison17. Appeals as a matter of right to appellate level court; review is discretionary to highest ct.18. Collateral Remedies writ of habeas corpus = claim a constitutional violation

I. The Beginning of Constitutional Criminal Procedure: Incorporation and Due Process

Criminal Justice was not a course until the Bill of Rights was applied to the states by the WarrenCourt in the 1960s

95% of criminal trials occur at the statelevelNORMATIVE TRADEOFFS: Themes of the Course - Individual Freedoms v. Law EnforcementPrivacy SecurityFreedom from arbitrary state intrusion Criminal space to scheme

Autonomy (5thSelf-Incrim.) Cant ask a criminal if hes committed a crimeDiscretion (cops, jury and prosecutor) Standardization easily administered rulesDiscretion allows mercy Equality discretion allows discrimination

Role of Courts Role of Political ProcessBright-line Rules = administrable Fuzzy Standards/totality of circ. = discretion

Common Law/Framers Intent Changing times technology, etc.Prophylactic Constitutional RightEqual Justice Before the Law

Federalism imposing values v. state freedom & political process (this is currently winning)To what extent should the federal Court impose a uniform set of rules on the states?

Constitutional Interpretation


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- Intent of the framers- Prophylactic rules- Courts limitations on addressing problems- Conceptually difficult lines to drawREP?

Shift: Warren Court/Civil Rights/Privacy concerns & monitoring policeRehnquist & today -dont interfere w/police

2 Theories on Incorporation of the Bill of Rights to the States under the 14th: (1) Total Incorporation(Blacks Palkodissent) = the 14thAmendment, when enacted, bound 1st-

8thAmendments to the states through Due Process & Privileges and Immunitieso If its in the B of R, its important; not a case-by-case approach

(2) Fundamental Fairness= case-by-case approach -> does it violate DP? Was this trialfair?o Standard is HIGH = could a system of ordered justice exist w/out the right?o Open-ended = judges can impose their views willy-nilly

Selective Incorporation wins looks at the RIGHT which was denied (not if the trial was unfair)o Is the right fundamental to AMERICAN justice?o Lower standard than FF approach

UNIFORMITY = Court oversees federal and state criminal trials; Civil Rights Movement led to

change/necessity for oversight

Incorporation Cases Facts Rule Bright-Line or C-by-C

Palko v. CT

1937

5thDouble Jeopardy apply tostates? No

Fundamental FairnessApproach

C-by-C = Was thetrial fair?

Adamson v. CA

1947

Does self-Incrimination apply tostates? No.

FF approach.

Rochin v. CA

1952

Does stomach-pumping violate DPthough not in the B of R?

Violates DP if it shocksthe conscience

C-by-C. lots ofjudicial discretion.

Duncan v. LA

1968

The 14thincorporates. 6thRight toJury Trial to states.

Selective Incorporation Bright line.

DAs Office v. Osborne2009

Does DP include right of convictedcriminal to DNA testing ofevidence?

No. No tradition ofDNA testing.

Court doesnt like tointerfere w/statedecisions in thename of DP.

II. Regulating Police Practice: the 4th , 5thDP & Self-Incrim, 6th, and Equal Protection

The 4thAmendment

unreasonable searches and seizures and no warrants shall issue but upon PC4thJurisprudence imposes rules on the police; as the intrusion on privacy increases, the more suspicion of

criminal activity & more procedural steps must be taken:

Privacy Invasion Suspicion Needed Procedural Steps

Consensual Encounter None

Non-ConsensualEncounter

Reasonable Articulable Suspicion No warrant.

Car Search PC No Warrant.

House Search PC Warrant.

Seizure (shoot you) PC that youre a danger to others

Object Search PC to believe object has contraband Can seize on PC but need


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warrant to search

A. The Exclusionary Rule = to deter the COPS; implied by the 4thAmend.

Possible remedies for Constitutional violations:EX Rule Civil Action against Police

GOOD: GOOD:

Deterrent: Takes away the exact benefit of the wrong No effect on truth/fact- finding

Judge sees the costs of the 4 thrulesLegitimacy of ct. we dont allow Const. violations/weoversee police

Remedies ALL violations

BAD: BAD:

Guilty Party goes free (rarely); Good evidence thrown out Overdeterence cops will hesitate to search ifthey may have to pay

No remedy for parties against whom no evidence wasfound

Undercompensation cops wont be forced topay much/criminals would never win

Judges only see the EX rule help out criminals => likely tointerpret 4thviolations narrowly

Legitimacy of the court letting crims go free

Exceptions to the Exclusionary Rule:1. Good Faith = only if a magistrate is involved

a. Objective standard: would a reasonable officer believe he had acted in good faith?b. A subjective standard would not be administrable would have to question cop about

everything that went through his mindc. Only applies when the deterrent effect of the EX rule is gone

i. Would apply EX rule if a cop is dishonest, warrant facially invalid, mag. goes beyondhis role, officer improperly executes warrant, bad affidavit

ii. When COPS mess up -> the ex. rule applies. Leonrests on the difference between amagistrate and an officer.

iii. Herringbroadens the exception must show the cops mistake was deliberate andculpable for the evidence to be excluded

2. Non-criminal evidencea. Evidence from an illegal search is admissible in non-criminal trials like immigration

proceedings or parole revocation proceedingsb. Reasoning the cop doesnt know what evidence hell find in conducting a search; it may be

criminal -> thus, the EX rule is a deterrent to conduct any illegal searchi. BUT, if a cop knows a person is out on parole -> can illegally search and lock up

again using illegally obtained evidence3. Impeachment

a. If a D says, Ive never seen cocaine -> prosecutor can submit illegally obtained evidence toprove D is lying

b. Reasoning Prosecutor doesnt know if D will take the stand, and it would be tooproblematic to allow D to just lie

Boyd v. US1886 = EX rule becomes the federal 4thamend remedy; previously, was tort lawEX rule

Cases

Facts & Reasoning Rule Dissent

Wolf v. CO

1949

States can choose to enforce the 4thhowthey want.FF approach. RIGHT and REMEDY are

EX rule does not apply tostates


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divided.

Mapp v.

OH, 1961

W/out Ex rule, the 4this a meaninglessright of words; civil suit was not workingin reality. If the right is fundamental, thenthe remedy is too.

EX rule applies to states

US v.

Leon, 1984

The cop thought he was doing his jobright; the magistrate messed up in findingPC when there was none. The EX rule

would have no deterrenteffect. Like Wolfagain in separating the right from theremedy.KEY = Magistrate mistakes are differentthan officer mistakes.

Good Faith ExceptiontoEX rule.-does not look to officer

intent. Test is was itobjectively reasonable forthe cop to believe therewas PC?

Possible deterrent copswill inspect the warrantmore closely.

Mag. might give morewarrants in close cases ifthere is not consequence tothe action

Hudson v.

Michigan

2006

4thamendment protects privacy interest.K-and-A protects different interests life(might shoot a sudden invader), property,and dignity.The violation did not lead to the finding ofthe evidence not a but for causehadcops waited, they still would have found it.

Exclusionary rule notappropriate remedy forknock-and-announceviolation (1sttime EX rulenot applied to a 4thviolation)

K-and-A is part of the 4th,and we need to deter allconstitutional violations.Though there is now astatute providing civil suitsfor violations, no one hassued for k-and-a problem.

Herring v.US2009

Warrant office made the mistake tellingthe cop there was a warrant out for Dsarrest. EX rule would not deter thisbehavior in cops.*Scalia & Roberts reasoning couldoverrule the EX rule altogether.

Good faith exception.NARROWS EX Rulesubstantially must showcops actions weredeliberate and culpablenot just negligent tosuppress evidence

Could deter warrant officesfrom keeping out-of-daterecords.How do you decide whatactions are neg. andculpable?

B. Triggering the 4thAmendment: What is a SEARCH? A SEARCH violates your Reasonable Expectation of Privacy Katz 2-prong test:(1)Subjective Ex. Privacy manifested by the individual

(2)Objective is it reasonable? One society is prepared to recognize as private?i. i.e - Society would recognize that your Dr./lawyer wouldnt tell info

REP is not in the 4thAmendment; its a NORMATIVE question do we want the police to put acheck on this police tactic?

o No longer a textual analysis (only Scalia and Thomas take textual approach) REP was adopted to protect people from technology but the 3rdparty exception leaves a major

hole because all information these days is voluntarily given to a 3rdparty (Credit card #s, address)

Triggering the

4th

Cases

Facts & Reasoning Rule Interest Protected

Katz v. US1967 Phone booth wiretapping -Physical intrusion is no longernecessary.The 4thprotectspeople, notplaces.

A Search violatesyour REP

Privacy in 18thcentury, propertyprotected privacy. Now, technologyneeds stricter privacy protection.


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US v. White

1971

Assume the risk of 3rdparty itsa more accurate version ofevents

3rdparty wearing awire is not a search.

BUT, dissent a part of privacy IS relyinon human fallacy.-like Karo and Maynard= privacyincludes the limits to human observatio

Zurcher v.

Stanford Daily

1978

Hard to know if a partyw/evidence is innocent. Asubpoena ducus tecum wontsuffice if you think evidence will

be destroyed or party can pleadthe 5th.

You may search aninnocent partysplace. Nodistinction between

innocent and guilty.

Cops only need PC that a party hasevidence in order to conduct a search.

US v. Karo 1984 Beeper in paint can monitoredinside a home. Info obtainedcould not have been gottenthrough ordinary visualsurveillance.

Its a search. The HOME unlike Knottsbeeper in thecar; its the same situation, but privacy ihome is greater.

CA v.

Greenwood

1988

Trash collector gave police thetrash - anyone could go throughyour trash. You assume the riskof trusting a 3rdparty.

3rdParty exceptionto REP.

Police investigation using 3rdparties.

Abandoned items = no REP.

FL v. Riley1989 Helicopter fly-over. No

OBJECTIVE REP because apractice common to the publicrenders what you subjectivelywant to keep private public.

If police tactic is a

common practice-> no REP.

What is reasonable to expect people wil

do?- see Bond: people will touch your bags,but fondling them is a search. PhysicalIntrusion is more invasive than visual.- see Maynard

Minnesota v.

Carter1998

Bagging cocaine. Was not anovernight guest/hotel guest/kidin parents home.You can search As home for dirton B and thats ok.Line: social v. business guest. AnySOCIAL guest has an REP.

Business guest hasno REP in anotherpersons home.(v. Minn. v. Olson social guest hasREP)

Violation must be personal. The policeget the benefits of an illegal search if itincriminates another person.Scalia textual approach: THEIR houses,persons, papers and effects cant meaneveryones -> it mean only your house

Kyllo v. US

2001

Heat monitor of home. Inforeceived from inside house thatwould not have been obtainedw/out going inside.

REP violated iftechnology is notin general publicuse.-applies primarilyfor homes (maybenot business)

Distinguished from Knottsa watchingwhere snow melts is way more difficultthan following a car.TECHNOLOGY concerns.Stevens Dissent: off the wall v. througthe wall invasion.

US v. Maynard

2010 DC Circ.

Continuous GPS tracking. 1 triphas no REP, but the sum of themdoes.

Aggregated data &REP

Have an REP in personal habits andpattern of life IFF society not prepared taccept the tactic.

After Stanford, Congress passed the Privacy Protection Act: state must go through subpoena DTunless it has probable cause that the party was involved in the crimo RARELY does the state INCREASE 4thprivacy protections because its on behalf of a

criminal; this was an innocentparty (and the 1stAmendment was implicated) Political Process v. Judicial Role

o Scalia would say its up to Congress to expand rightso But in the case of criminals, the political process is not on their sideo **The Courts have a much larger role in protecting criminal rights than other constitutional

rights


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C. Probable Cause, Particularity and Execution: Once theres a REP, what must the govt show to invade it? Probable Cause + a Warrant = makes a Search reasonable To conduct a search -> need PC theres evidence of crime in the place to be searched To conduct a seizure (of a person or of a thing)-> PC that person committed a crime

What is PROBABLE CAUSE?

Spinelli2-part testmust be satisfied for magistrate to deem PC:(1)Credibilityreason to believe informant is telling the truth

a. History of informant telling the truth(2)Basis of knowledgereason to believe informant got info in a reliable way

a. Cannot rely on hearsay*PC also need must be particularized, individualized suspicion i.e. thisperson, thishouse; but Pringleloosened this requirement

BUTSpinellioverruledin favor of Totality of the Circumstances in Gates

IS IT REASONABLE TO SUPPOSE THERES A FAIR PROBABILITY OF CRIMINAL CONDUCT? Strong factor makes up for a weak one:

oMore credibility -> can have less basis of knowledge

o More basis of knowledge -> less credibility is ok Corroborationof future actions not easily predicted

o The tip itself is not enough to establish PC, but corroboration of it is Gatesdeference to the magistrate + LeonEx. Rule Good Faith Exception = narrows ex. rule;

magistrate is insulated from judicial review Why the change?

o Lower courts were caught up in the technicalities of Spinelli Warrants must be PARTICULARIZED to be valid and EXCECUTED in a reasonable manner

(1)want to know magistrate made a determination as to the scopeof the search(2)notice to the person being searched(3)Test for if the Execution is reasonable = look to what officers know or reasonably should

have known(Garrison)

**PURPOSE OF A WARRANT = interposes an independent decisionmaker

PC Cases Facts & Reasoning Rule Interest Protected

Spinelli v. US

1969

Magistrate must be making anobjective, independentdecision & not simply deferring

to the cop

2-part test for PC:(1) credibility(2) basis of

knowledge

Judicial oversight morebright-line rule.

IL v. Gates

1983

Anonymous letter corroboratedin part by police. Deference tothe magistrate to make a faircall.

Totality of the Circ

.standard.Overturns Spinelli for astandard.

MD v.

Garrison

1987

1320 warrant. Cops reallyshould only have searched1320A. The mistake wasreasonable. The cops stoppedthe search as soon as they

Reasonable executionof a warrant turns onwhat officers knew orshould have known.

Similar to a good faithexception.

Dissent: the cops should haveseen 2 mailboxes, etc. the


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realized the error, and they hadno way of knowing there were 2apartments on the floor.

standard is good, but the factslean toward the cops shouldhave known better.

Richards v.

Wisconsin

1997

D cracked the door but wouldnot let the cops in. K-and-aexception was ok in this case.Case-by-case approach to see ifcop had reasonable suspicion

that k-and-a would bedangerous/lead to loss ofevidence.

No categoricalexception to knock-and-announce rule indrug felony cases.

House Privacy no bright-linerule because that would beoverinclusive/too muchprivacy invaded.

MD v. Pringle

2003

3 people in car were allarrested when cop foundcocaine though cop didnt knowwhom it belonged to. This washeld ok.

Individualized

suspicion requiredfor PC. (This person,thishouse)Particularity aspect

of PC. This meansonly 1/3 particularityis enough.

Irony: more the cop knows,less can do:-> can only arrest 1 if knowwho did it but all 3 if dont.-vs. Ybarra: cant searchentire bar when knowsomeone has drugs

D. Warrantless Arrests and Searches of Persons and PremisesA search or seizure is reasonable IFF its based on a warrant which itself is based on PC.But, most searches do NOT have a warrant.

Warrant Exceptions: Dont need a warrant if if there are significant costs to getting one evidencedestructionor danger to police:

(1)Exigent Circumstances(2)Before-the-fact judicial scrutiny would not be useful i.e. see a crime and arrest(3)Intruding on lesser 4thAmend. interestsFactors to decide if a warrant is needed:

(1)Common law at time 4thadopted was the exception recognized? Have circumstances changedso the exception no longer makes sense?

a. Its a relevant question, but not determinative. Does it make sense in todays world?b. Border search = ok cuz unrealistic to expect police to get a warrant for customsc. Garneruse of deadly force not clear. Felonies allowed the exception, but now there are

many more felonies and technology can lead to police abuse of power(2)Rules in Existence what do the majority of states do?(3)Would a warrant be burdensome/too costly/always granted anyway an thus pointless to get?(4)Would a warrant serve its purpose of having a neutral magistrate?

To get a SEARCH warrant, you must show: PC that crime was committed + PC to believe thatperson/thing you want is in the area to be searched.

To get an ARREST warrant, you must show: PC that a crime was committed by the person youwant to arrest, but not that the person will be in his home. We assume people go home.

o You need a reason to believe Ds inhis home when you enter, but the magistrate does notneed to sign off on it.

o RTB is necessary so cops wont watch D leave & enter his home in hopes of finding evidence


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*An arrest warrant is only necessary when an officer enters a home & there are no exigent

circumstances.(a car = cop usually sees the crime)

Arrests w/out

a warrant

Facts & Reasoning Rule Interest Protected

US v. Watson

1976

Cop could have gotten awarrant, but judicialscrutiny would have been

pointless (he saw thecrime happen). Commonlaw at framing allowed it.Congress had authorizedthis kind of search under astatute.

Arrest in a public place=- needs PC but no warrantrequired.

- Always ok if cop sees thecrime.

Police efficiency.

Its underprotective &

overly broad.

Payton v. NY

1980

You might need to searchthe whole house for thearrestee warrant is verynecessary.

In-home arrest inyour

home: requires an arrestwarrant + PC; i.e. - reasonto believe D committed acrime, but we just assumepeople will be in their

homes.

This is different than anIn-home arrest in a 3rd

Partyshome: greaterrequirement. PC of crime ++ search warrant (reason tobelieve D will be in the 3rd

partys home) to protectprivacy of 3rdparty(Steagald 1981)

TN v. Garner

1985

Costs of the rule thatcriminals can escape - areworth it when theconsequence is death;permanent seizure, nottemporary

Use of Deadly Forcerules:(1) D threatens copsw/weapon(2) deadly force necessaryto stop escape(3) Must give a warning

Warrant requirementINCREASES.But, standard is lessened byScott.Dissent: is this 3-part testmanageable for cops whomust make a split-seconddecision?

Scott v. Harris2007 Cop ran a car off the road feeling danger posed athreat to others on theroad.

Deadly force test becomesa standard: was the policetactic reasonable?

Dissent: standard shouldbe if the risk involved incontinuing the chaseoutweighs the benefits ofstopping, you stop.-> majority finds thisunmanageable andimpractical for courts to

rule on

Law enforcement efforts.Standard gives morediscretion to cops doesnot require much more thanPC.

Reasonableness standardmakes more judicial sensethan a stricter rule becausejudges arent in the cop ssituation to know.

**After a warrantless arrest is made, need to go to a Gersteinhearing to prove you had PC w/in 48hours (or less- need to prove no unreasonable delay in getting to hearing)

o After-the-fact check to deter cops from making arrests w/out PCWhat can the cops do in the course of an arrest?

SILA search incident to lawful arresto Court struggles w/wanting a bright-line rule and carefully tailoring rules for exceptions


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Cops have an arrestwarrant but no searchwarrant -> what can they search?o 2 concerns:

(1) officer safety (2) destruction of evidence

o Basic rule= if you have PC to arrest, you dont need a search warrant to search person &area w/in his immediate control.

SILA Cases have an arrest warrant (or PC to arrest in public place/car) but no search warrant

SILA Cases Facts & Reasoning Rule Interests

Chimel v. CA

1969

In home, officers searched for stolen coinswhen they only has an arrest warrant.If the concern is officer safety only lookon the person and where he could reach.

In home SILA:search is limited toarea w/in Dsimmediatecontrol.

Pre-1969, courtsallowed a full-scalesearch of home. Thiswas a huge change.

US v.

Robinson

1973

Cigarette box found in pocket & opened. 2reasons the search is ok:(1) risk inherent in custodial arrest Dhas reason to use weapon if hes armed(2) destruction of evidence more likelywhen D knows hes going to police station

BUTThere was no concern for officersafety or evidence destruction, but thecourt upheld bright-line rule.

In-Car SILA of the

person: CanALWAYS search the

personin custodialarrest.Bright-line rule is

administrable.

Police protection.Fluid situation of thearrest.Only during acustodialarrest i.ewhen the arrestee is

going to be taken tothe station

AZ v. Gant

2009

Purposes of a SILA is to protect officersand get evidence which could bedestroyed.Looking in back seat not relevant whenarrest is for driving w/suspended license(an evidenceless crime).Passenger compartment no longerassumed to be w/in reach of D.

In-Car SILA of the

car: can searchpassengercompartment (1) toprotect officer, (2) Ifreason to believeevidence relevant tothe crime of the arrestis in the car (Old rule

overturned = Belton;could always searchpassengercompartment)

Moving away fromthe Belton bright linerule = morediscretion to cops tomake on-the-spotjudgments.- can search for drugsif you arrest for adrug crime

-cant search car ifyou arrest for atraffic violation (noevidence)

Gant alters Chimel tocan only search area w/in Ds realisticcontrolunclear if this only altersthe SILA rule for cars or altogether

o D can possibly now argue, once I was handcuffed, nothing was w/in my reacho Its less clear in the case of a home -> pushing a more tailored/less bright-line rule creates

ambiguities & leaves room for lots of litigation.

E. Warrantless Seizure and Search of Vehicles and EffectsAutomobile Exception: Exception to Warrant Requirement but NOT to PC requirement

House search = PC + warrant Object search = PC to believe object has contraband -> can seize on PC but need a warrant to

search Cars are somewhere between House and object need PC but no warrant to conduct search

Basic rule= If you have PC to arrest for a crime w/evidence, that same PC works to search the vehicle i.e. if you arrest a drug dealer, you can search the car for drugs


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Auto Casesno

arrest warrant

Facts & Reasoning Rule Critique

CA v. Carney1985 Mobile home searched w/outwarrant. Reasons:(1) Lower REP in car(2) Mobilitycars can be gone bythe time you get a warrant

(3) Historical common law allowedcustoms to search vessels

Search of a carrequiresPC but no warrant.

Luggage is mobile,too. But cops canonly seize luggagew/out a warrant.Must get a warrant

to search luggage.

CA v. Acevedo

1991

Clash of 2 rules containers (needsearch warrant) & cars (no warrantneeded) its a container in a car. Thecop had PC to believe the containerhad contraband, but not PC to searchthe car.

Search of personal

effects inside a car:police may searchcontainers inside a car ifthey have PC to believe itcontains contraband.

Problem: acontainer walkingdown street isprotected, but assoon as you get in acar its not.

WY v. Houghton

1999

QP: to what extent does search of acontainer extend to property ofpassengers?

- completely. Everyone in a car is inthe same endeavor. Dont want themto lie and say everything is apassengers.

Passengers personal

effects: bright-line rule.No distinguishing

between driver &passenger belongings. IfPC that a car containscontraband, can search allcontainers.

Court maintains adistinctionbetween people &

property. Cantsearch someoneswallet if its onthem.

Hypo:Cop sees you walking down street and has PC to believe your briefcase has evidence of crime. You get in acar. Cop can then search the briefcase underAcevedobut not the trunk of the car. Under Gant, he couldpossibly search further once youre arrested if he had reason to believe evidence of the same crime wassomewhere else in the car.** thescopeof the search is always defined by your suspicion/PC/purpose for conducting the search

F. Consent Searches, Pretext Stops, Discretion and Racial Profiling

Whrenv. US1996 Pretext Stops are okQP: if subjective purpose is different than the stated purpose of the officer, should the standard bedifferent? Ispretext always problematic? We think racial profiling is wrong, but what about catching a murderer under a tax fraud pretext? Court is hesitant to put EP in 4thAmendment jurisprudence for multiple reasons:

o Difficult to get into mindset of officerso Objective fact that person broke the law makes the stop reasonableo D wants a reasonable cop standard would any cop actually have pulled you over for

going 1 mile over speed limit? (Would have test) Court rejects; this would reduce police discretion. Could only pull over people for

violations that a reasonable cop wouldo In reality, its impossible to enforce all traffic violations all the time; the would have test is

not administrable

Whren RULE: nothing wrong w/a pretextual stop as long as theres an objective reason to be pulled over.If theres evidence of racial motivation -> that an EP problem, nothing to do w/4thAmend.


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In effect, there is no legal ramification for a pretextual stop.

CONSENT DOCTRINE (consent to asearch)

Must show the waiver was voluntarily waived(Schneckloth)lower standard than trialrts; NOT knowingly & intelligently

Reason = you have no REP if you consent. Its not really a search anymore. Schneckloth1973Reasons court gave for not needing to make D aware of his right to refuse the search:

Right to not be searched is not a trial right (v. Mirandaright to remain silent) Impractical doesnt fit w/the fluid situation(unlike a trial right which is not in a fluid situation)

o BUTFBI does it, and some states, too Want to encourage consent the community has a real interest in encouraging consent

o BUTif you tell someone who knows their rights, its redundant & wont discourage them; itwill only discourage those who dont know their rights

Capitalizes on the ignorance of citizens& fear of copsOfficers can use consent doctrine against anyone. But, they use is when they have suspicion (but not PC).

Suspicion is usually racist. A warning requirement would notchange the ability of cops to use it randomly3rdparty consent= a 3rdparty cannotwaive your rights; but you do have a lower expectation of privacywhen roommates are involved & they let someone in. But see Rodriguez.

Pretext Stops & Consent Doctrine

Case Facts & Reasoning Rule Critique

Whren v. US

1996

-pretext stop

Black men stops 20 seconds atintersection & speeds off. Plainclothes cops pulled him over and

arrested for cocaine.

Nothing wrong with apretext stopas long astheres an objective

reason for PC (i.e.-trafficviolation)

Everyone commitstraffic violations this allows anyone

to be pulled over

Atwater v. City of

Lago Vista

2001

-pretext stop

Cop arrests mom for driving w/outseatbelts on kids. D tried to argue thatshe could not be arrested for a non-felony not punishable by jail time.

PC makes an arrestreasonable w/out more.

Broad power tocops can pull overunder pretext,arrest, and thensearch under SILA.

Schneckloth v.

Bustamonte

1973

Consent

Man consents to search of car w/outknowing he could say no. anotherman in the car was arrested.Why? Gave up REP.

In obtaining consent,officer does not need togive warning of right tosay no to search.

Shouldnt the stateneed to show thechoice wasmeaningful?

Georgia v.

Randolph2006

Husband refused search of home.

Cops asked his wife, and sheconsented. NOT ok.

3rdparty consent wife

cant waive husbandsrights.

Dissent: no REP.

youve given wiferight to invitepeople in.

Rodriguez BF kicked our GF. She let the cops inand consented to their search.H: consent makes it ok. GF didntwaive Ds rights, but she looked likeshe had authority.

Exception to 3rdPartyconsent its ok if theconsentor has apparentlegal authority. The copsactions were reasonable.

Like the warrant &3012A apt.Garrisoncopsacted in good faith.

**Consent Doctrine + Pretext Stops = makes racial profiling possible on the road


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People always consent because they are afraid of copso Almost coercion they have authority to arrest you, so you do what they want

Search w/out PC cuz they think blacks have drugs No easy solution for pretext stops cuz its too subjective, but consent has an easysolution -> just

tell people their rights

G. Equal Protection and Criminal Law Enforcement

In Whren, Scalia said the 14th EP - not the 4th- protects against racial profiling (the 5th, too, under DP).But, cases dont turn out so swell under 14thclaims.

To establish an EP claim:

(1)racial purpose [govt took action because of your race](2)similarly situated others are treated differently

US v.Armstrong1996Ds claim: prosecutor chose to prosecute in federal court because were black.Ds evidence = 24 of last 24 crack prosecutions were black. Non-blacks are only prosecuted in state court.H: D did not show (2) others broke same law as you, that prosecutor knew that, and those others werenot prosecuted.

This is impossibleto show w/out discovery, and the court wont make prosecutor turn over theevidence on account of prosecutorial discretion.

(1)D also had no evidence, but it is about subjective motivation also need discoveryMcCleskeyv. Kemp1987D has evidence of (2) study says more likely to get death penalty if you killed a white victim; controlledfor other factors other than race.

Disparity = prosecutors willingness to seek Death Penalty & Jurys willingness to give DP.Why does McCleskey lose?

(1)Intent he cant show his prosecutor or his jury based their decisions on raceBasically, an EP claim only succeeds if someone admits to being a racist.

Ds 2ndclaim: its arbitrary. The jury as too much discretion to decide who gets death penalty (SCOTUShad struck down a statute in 1972 as giving too much discretion)H: 1. there are now enough rules to combat the arbitrariness

2. Risk of prejudice is alwaysa factor; it comes from discretion.Discretion isgood for defendants they may not get the DP if jury decides.

**Doctrine assumes the system works & only identifies outliers (actual racists) but does not

address general disparities (racial profiling is based on general associations of race & crime).

Court doesnt want to open this challenge for all aspects of the criminal justice system. Says legislature is better suited to fix the problem.o But politics does not protects criminals.

Court also has no remedy; how could they decide McCleskeythe other way?o Maybe have prosecutors explain their decisions? But that is a discretion problem

H. Reasonable Suspicion and Stop & Frisk

Police engage in many encounters w/citizens that are short of a full-scale search or arrest.Small intrusions dont trigger the same protections as larger (like PC).


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Terry v. Ohio1968 NO PC; Lower RAS standard

Shift from a rule warrant makes it reasonable unless exception like exigent circ.Now, a balancing test decides if its reasonable:

individual autonomy v. govt interest in preventing crime

H: yes, its a seizure. You cant walk away. If an officer says, stop inthe name of the law thats a seizure. If they threaten to use authority in any way, its a seizure.

Its nota categorical exception not exigent circumstances, not a public arrest cuz no PC.**Problem = cop had no PC. You cant arrest someone for thinking about engaging in crime.RULE: No PC or warrant required. To conduct a stop and frisk. Office must have reasonable articulable suspicion.

RAS is a lower standard than PC. Why does court adopt it?(1)Govt interest inpreventingcrime

a. If you cant intervene until have PC, you cantpreventany crime(2)Less intrusive tactic not a full-scale search or seizure

a. Only a pat down on top of clothesb. Individuals privacy interests are reduced

i. Court uses this reduced privacy rationale to expand Terry stops to investigatepastcrime (Hensley) its not prevention, its investigation

When can you frisk?

When RAS that a crime will or has occurredo BUT, SCOPE: only if you have RS to believe the person is armed and dangerouso i.e.- cant frisk someone w/open alcohol or drugs

Terry Standard: Would an objective person take action? The suspicion can justify the stop. Sometimes, the suspicion that a person is dangerous develops.

o i.e. stop someone for alcohol, see a bulge in pocket, think its a gun & only thencan youfrisk

o Can only frisk for weapons; if they find pot in the pocket -> not admissible at trial cuz notpart of the scope of a Terry stop

Though its a balancing test, there are Terry Stop RULES:

(1)Search & Seizure are governed by the 4thAmend.(2)RS to believe a crime is occurring(3)To frisk, RS that D is armed and dangerous(4)Limit scope to looking for weapons(5)Encounter must last no longer than necessary to confirm or dispel the suspicion

MN v. DickersonPLAIN FEEL DOCTRINE(comes from #4 scope)Cops felt crack bottles & manipulated them to determine what they were -> inadmissible.Had thy not manipulated them & just knew what they were from frisking -> admissible; not outside scopeof looking for weapons (this is the PFD).

US v. Place1983Cops erred in #5 -> took too long. Took luggage from LaGuardia to Kennedy for dog sniffing.


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90-min Terry stop of luggage = would never uphold a 90-minute Terry stop of a person.Why is a Terry stop ok for luggage(its not a dangerous weapon)?

Only reveals contraband (doesnt go inside); and a person has no REP in possessing contrabandMich. v. Longcar stop -> can frisk IFF have RS to believe weapon might be in the car.

Camretav. GreeneGovt want to apply Terry to 2-hour interrogation of child by cop & social worker.

Balancing approach: preventing child abuse is a very strong interest; getting PC before talking to the childis difficult.

Getting PC would interfere w/govt ability to prevent child abuse Less intrusive child is the witness, and a childs liberty is already constrained at school. Yes, its full scale seizure. But the govt interest is huge. If Terry does not expand to include this situation, the special needs exception to the warrant

requirement is the only possibility.

How do you distinguish between PC and RAS?Spectrum of seizures:

[-----------------------------------------------------------[-------------------------------------------------------------------]-Consensual encounter Terry: stop (less intrusive seizure) Arrest/Full Scale Seizure-no seizure: a reasonable person - Brief & Limited; a little coercion -lots of coercionwould feel free to terminate (need RAS) (need PC & warrant)the encounter ; no coercion

PC v. RAS1. PC needs credibility & basis of knowledge. (Gates)2. RS has a lower standard for each (theyre relevant but not necessary) (JL)3. RS varies based on the gravity of the threat. PC does not. (Wardlow)

What is RAS?FL v. J.L.- NO RAS.Anonymous tip that kid in plaid shirt at bus stop has a gun.H: NOT RAS.R: Anonymous tip give no indicia of reliability.=> same basic question as ask for PC.* no blanket exception for firearm tips, but a bomb/greater threat wouldconstitute RAS.

**RAS is a sliding scaledepending on the gravity of the threat. This is nottrue of PC. The amount of infoneeded for PC is the same for a murder or a traffic stop.

IL v. WardlowYes, RAS.RAS Factors:

(1)High crime areaa. Not a necessary factor in fact, we dont want cops to show up in high crime areas and use

display a SHOW OF AUTHORITY to frisk people; a show of authority isa seizure -> i.e. stopin name of law

(2)D fled the cops nervously- this is keyfactora. But, bots of reasons for flight fear, bad experience w/copb. Flight/nervous or evasive behavior leads to RAS


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When does a consensual encounter become a Terry stop (and thus a less intrusive seizure)?


US v. Drayton

2002

Cops searched a bus. D consented tobeing searched.QP: when D consented to the search,

had he already been seized (andthus the consent was fruit ofpoisonous tree)?

H: Not a seizure. Consent was valid.

RULE: A Terry stop occurswhen a reasonable personwould no longer feel free to

terminate the encounter.

Look to cops behavior: doeshe threaten w/force?Inherent coercion of any copencounter is not enough to bea seizure.

The reasonableperson standard is nothonestly a real person

otherwise, everyencounter would be aTerry stop. No one everfeels free to say no tocops.Why not tell peoplethey can say no?

Objective v. Subjective Standards:

Consensual seizure= objective standard: would a reasonable person feel free to terminate the encounter?Consent to a search= subjective standard: did D voluntarily consent to the search?

When does a Terry stop become an arrest/seizure (and thus require PC)?


FL v. Royer

1983

Airport man fit the drug carrier profile luggage tag had different name than histicket. He did not consent to search ofluggage, but he unlocked the bag for thecops to search. H: this was an arrest.

Key: are there obvious,less intrusive ways to getthe info?

What makes an arrest?-Scope: took too long toconfirm/dispel suspicion.-Environment: backroomwas coercive setting.

How much are thecops trying toexploit the coercive

atmosphere?

I. Administrative or Regulatory Searches

Special Needs/Administrative Search is an exception to the warrant & PC requirement.

Special Needs Factors:(1)Important government interest above & beyond ordinary criminal law enforcement

a. Administrative meanspurposeis to protect the public (not to fight crime)(2)Consent (i.e. you choose to get on a plane)

a.

Not a prerequisite; consent in this context really means advance notice(3)Minimal Intrusion = lower REP(4)PC and Warrant are impractical(5)Standardized police procedures lessens police discretion(6)Effectiveness of program (minor factor)

Concerns:1. Discretion Danger: Police discriminate when given too much discretion2. Standardization: a standard procedure combats discretion & makes you feel less intruded upon if

everyonehas to go through the procedure


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a. If its random, you still feel itsfairi.e. random drug testing is okAdministrative

Searches

Facts & Reasoning Rule Critique

CO v. Bertine

1987

D was arrested. Before impoundinghis car, the cops did an inventorysearch to see what was there.-inventory is not about looking for

crime; its purely to see whats thereso D wont claim theft

Inventory searchdoes notrequire PC or warrant.

However, there must bea standard procedure toan inventory search soits not done arbitrarily

check on discretion (FL vWells)

DE v. Prousse

1979

Individual discretionary stops tocheck for licenses are notok.

Need a standardproecedureto minimizepolice discretion/arbitrarydiscrimination.

Samson v. CA

2006

CA statute allows parolees to besearched anytime without cause.H: its ok.Primary purpose is

NOW: you dontnecessarily need RAS or

standardization for a stop

to be ok.

No check on policediscretion.

Mich. v. Sitz Sobriety checkpoints are ok seizuresw/out PC & warrant.Drunk driving is particular problemto the highway.

Special needs = Importantgovt interest is above &beyond ordinary crim. lawenforcement.

City of

Indianapolis v.

Edmond

Drug checkpoints are notok.Drugs are not particular to thehighway.

Special needs general lawenforcement.

T.L.O - interest in maintaining order inschool- PC impractical cuz teachers arentschooled in 4thAmend-Minimal intrusion: kids have to be inschool anyway

Schoolofficials can searchkids private possession.

Safford No strip searches of studentsunless reason to believedrugs are in theirunderwear.

Post-Samson, its a balancing test instead of a special needs exception: the Court did not call itan administrative search. Just says its a 4thinquiry w/a balancing test.

BUT Court is really identifying an interest A & B ordinary law enforcement: make sureparolees dont pose a danger to others

Hypos post-Samson: IDENTIFY THE PRIMARY PURPOSE OF THE POLICY:

DUI checkpoint but have drug-sniffing dogs, too?o Could go either way:

Ok: dogs dont increase the length of a search; no REP in contraband (Place); findevidence of crime but primary purpose was A &B normal crim. law enforcement

Not ok: if criminal law enforcement is the solepurpose, and dogs show that Testing pregnant mothers for crack:

o OK: argue primary purpose is health of babieso Not OK: argue primary purpose is to find crack users


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4thAmendment Overview: 2 Ways to Think About It:

J. Entrapment

Entrapment might not be a constitutional doctrine, but it deals w/police conduct in investigatingcrime.

Tactics are highly visible Roundups of young, Arab men and they increase anti-Americansentiment across the globe

o Are the tactics worth it? FBI sends informants into communities to try to identify threats/create sting operation & find

willing recruits. Destroys communities you can no longer trust your neighbors.o QP: would they have been engaged in criminal activity w/out the FBI involvement?

Informants Important tactic to fight crimes like drugs, corrupt govt officials, human trafficking Sting operations also detercriminals To regulate the practice, the Court invented the Entrapment Doctrine

1. What does it take for an entrapment defense to succeed?US v. Russell 1973

FBI supplied meth ingredient difficult to obtain. Court rejects entrapment defense because D could haveobtained the ingredient himself w/out the govts help.

2 Entrapment Tests:1.Rehnquist Majority:Subjective Test (federal)

PREDISPOSITIONIs D predisposed to commit crime, or is he otherwise innocent?o (1) Was D committing crime before govt got involved?

1. Traditional Rule-Based Approach 2. Modern Balancing Approach

- W & PC make a search reasonable. Its required

unless theres a categorical exception.

- 4th

just asks a question of reasonableness.

Balance the interests of law enforcement & privacy.

- Autos: PC, no W - Terry& Samsonuse this reasoning

- SILA: no PC or W once theres a lawful arrest - open-ended

- Exigent Circumstances: getting a W would cause asafety concern or destruction of evidence PC & W are only required for in-home search orarrest or a search of effect

Even with the balancing test, the Court likes tomake bright-line, administrable rules to oversee

the police

Look to the categoryof situationsis itreasonable to require W & PC?

- Border Search: no PC, RAS, or W.

- Terrystop & Frisk: less than PC; only RAS

- Administrative Searches: balancing inquiry

- Consent Search: waived rights makes search

reasonable

- Consensual Encounter: fictional reasonable person

standard

Historical shift from Rules -> balancing.

Court was concerned w/checking police discretion during Civil Rights. Now, were concerned w/undermining police ability to combat crime(Nixon war on crime,

Reagan war on drugs, Bush War on Terror) Its hard to investigate drug crimes, but the public wants it. This leads to discrimination based on

an unconscious association between drugs & crime & race.


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o (2) How much has the government inducedabove the market? The real world itself offers inducement (you make $$ for selling drugs) Court asks Howfar beyond the real world did the informant go?

If the govt offered you $1 million for something, thats a lot of inducementand would qualify as entrapment; but, if a wealthy businessman offers youthe same, you have no defense.

Youre otherwise innocent if the got offers you something but not if a privateparty does. The real concern is thus overgovernment conduct-> should weuse the Objective Test below?

2. Stewart Dissent: Objective Test (many states & modern penal code)

CONDUCT OF THE GOVTo Person is never otherwise innocent. Hes guilty.o But we should really ask is this the kind of conduct we want our govt to engage in?

If not, apply exclusionary rule to deter behavioro This gets at the heart of what the entrapment defense is about (govt conduct) but still

presents a problem of drawing the line between acceptable v. inacceptable conduct.

SCOTUS has never overturned a conviction under the objective testo Jacobsen v. US1992: suggested that some govt behavior may be so egregious that it would

not be ok, but its only a suggestion; instead, it overturned conviction based on subjectivetest -> govt failed to show D was predisposed to commit child pornography offense

- Subjectivetells the govt its ok to use anytactic as long as you know D is predisposed. No deterrent.Also allows otherwise inadmissible evidence of Ds character.- Objectivedraws no distinction between Ds. Criticism: maybe we want the govt to be able to use moreintrusive tactics on worse criminals

2. Whats the legal authority for the Entrapment Doctrine?

1. Subjective Not Constitutional. Its statutory interpretation. Court is reading otherwise innocent into every

criminal statute.o i.e. Congress did not intend that someone who purchases porn in the way that Jacobsen

did to be guilty. Entrapment is a question of facts for jury.

o Chancellors foot of the jury problem no rules to determine if someone is trulypredisposed

o In terrorism cases, the jury will always decide D is predisposed because the crime is sohorrendous.

2. Objective Constitutional matter under Due Process. Did the govt conduct offend DP? Would allow exclusionary rule SCOTUS can deter govt conduct Question of law for judges

o Chancellors foot problem: where do you draw the line between acceptable & unacceptablegovt conduct?

K. Right to Appointed Counsel: The limits of Equality- 1 Right notabout the limits on investigative tactics.


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Why study the right to counsel?(1)Regulates pretrial investigative methods

a. Identification & interrogationb. Yes, its a trial right, but whenits triggered matters.

(2)Necessary to enforcement of all other criminal rightsa. You can only vindicate your rights when theyre violated w/out a lawyer

(3)Fairness & Equalitya. There can be no equal justice if the kind of trial a man gets depends on the amount of $ he

has. (Black concurrence in Griffin)b. Gideon and Mirandaintroduce fundamental aspect of fairness.c. Real question: not iftheres equality but how farwere willing to go to ensure it

6thAmendment Right to Counsel Evolution: From case-by-case - bright line rulesCase Facts & Reasoning Rule

Johnson

1938

Constitution requires lawyer to indigent inFEDERAL cases.

Betts v.

Brady1942

- Rt to counsel is NOT a part of due process-Rt is applied underfundamental fairness-If the end is justice, and the trial is fair, why make

the states get a lawyer?

Rt to counsel is applied to states; but, onlyif the trial is unfair, if there are specialcircumstances

Based on fundamental fairness approachto due process.

Powell 1932 Special circumstances found when D given lawyer onday of trial & was feebleminded

NARROW holding; not clear if rt applies to asmart guy, etc.Also says counsel must be effective

Gideonv.

Wainwright

1963

D charged w/robbing a pool hall & convicted w/outcounsel.-fundamental fairness approach is abandoned; itsalmost always unfair not to provide counsel

6thAMEND Right to counsel applies to

the states.In all serious criminal cases,states must supply counsel.Bright-line rule because the Bettscase-by-case approach was carving out manyexceptions.

Scope of the Right to Counsel = LIBERTY: What kinds of cases does it apply to?Gideonsays serious cases -> a felony not a misdeamenor

Felony = anything w/a possible prison sentence over 6 months; rt to jury applies to felonyArgesinger & Scottsay the felony/misdemeanor is an arbitrary distinction; a misdemeanor case can bejust as complicated

New RULE: if youre going to seek anyprison sentence, state must provide a lawyer LIBERTYis the new line.

AL v.Shelton2002

Tried & convicted & sentenced to prison, but the sentence is suspended -> probation. Only get a prisonsentence if he breaks probation.AL argues: no liberty is taken yet. Well provide counsel at the probation hearing if it gets to that point.H: no, he needed a lawyer beforehand. If he goes to prison, its for the prior conviction.RULE: If state seeks incarceration -> must provide counsel.

When does the right attach? When itsADVERSARIALRothgery v. Gillespie County2008TX law = go to magistrate hearing to decide if cops had PC, set bail & told what youre accused of.


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TX arg: criminal case hasnt started yet. He hasnt been charged.RULE: Right to counsel attaches atinitial judicial proceeding.R: its sufficiently adversarial. But, this doesnt mean D had the right to a lawyer at the hearing the rightjust attached.To get a lawyer present, D must show:

(1)Right has attached (judicial proceeding started)AND(2)Critical stage of criminal proceeding(this is when you are actually entitled to have a lawyer

present)

because the 6thRight is only a right at a criminal proceeding.Right to Counsel on Appeal

Once youve had a trial & been convicted, youve had assistance of counsel in your defense (the 6this satisfied)

Due Process & 6thAmend do notrequire appeals; need to make an equal protection claim.Case Facts & Reasoning Rule

Griffinv. IL

1956

EP arg.

A transcript was a prerequisite inorder to appeal.EQUAL PROTECTIONcomes intoplay.

RULE: state must pay for indigent transcripts if it providesappeals. If the rich are provided w/appeal-> state mustgive it to the poor.

Douglas v.

CA1963

EP Arg.

If not, line between rich & poor isstarkly drawn.Legitimacy of the crim justice systemdepends on equality between richand poor (its more important thanequality in everyday life)

RULE: EP requires that counsel be appointed to assistindigent defendants in preparing the first appeal from aconviction when the appeal is available as a matter of right.

Ross v.

Moffitt1974

Discretionary appeals decide matterof lawnot questions of guilt.

RULE: Rt to counsel does notapply on a discretionaryappeal.EP arg. has faded in favor of DP arg.

Steps in a criminal case:A. State

1. Trial ----------Indigent is only provided counsel at these first 2 steps

2. Appeal--------3. Supreme Ct.4. State post-conviction review prosecutor failed to hand over exculpatory evidence, ineffective

assistance of counsel, new evidenceB. Federal Habeas Corpus: fed. ct assesses the legality of the detention; finds a constitutional error 40% ofthe time

1. Districtindigent has statutory rt. to counsel IFF death penalty case2. Appeal3. SCOTUS takes 10 of 10,000 cases/yr

Ineffective Assistance of Counsel (from McMannrt to effective assistance; from 6thamend)- Can only claim for steps when you had the right to counsel (Trial & appeal); after that, you had no rightto counsel, so anycounsel is by definition not ineffective- Lawyers must raise issues or they are waived upon review


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Strickland1984 TEST FOR EFFECTIVELawyer failed to put on any mitigating evidence in a death penalty case.2-Prong Standard for effective assistance:

(1)Performancecounsel so seriously deficient so as not to function as counsela. Based on what a reasonable attorney would dob. Court is highly deferential to the attorneys decisions lawyering is tacticalc. Presumption the attorney acted reasonably

(2)Prejudice but for the deficiency, the trial would have come out differentlya. Reason = right to counsel is to ensure a fair trial; if the result was correct, whats unfair?b. Hard to prove. Errors a bad lawyer makes dont show up in the cold record.c. Opposite of harmless error - has the burden instead of the govt

*Court assumes the norm is adequate. There would only be a proliferation of claims if there are lots ofinadequate attorneys.*Gives no incentiveto improve the norm. We underpay & overwork lawyers.

Why not question the norm? Incentivize! Coles book Death Penalty resource centers werefrustrating the implementation of the DP

o Now, we pay more for worse lawyers so we can have more DP sentencesRompilla v. Beard2005 Hope for the future?Recognizes that we shouldnt give so much deference to attorneys. Counsel didnt look at 1 document thatwould have lead to mitigating evidence, but the Court determined it was inefficient assistance.Why?

DNA exoneration, etc. has lead to more skepticism about the presumption that a lawyer isreasonable

L. Interrogations and the ConstitutionConfessions Based on 5thAmendment Right Against Self-Incrimination

Accusatorialsystem of justiceo

5th

Amendment privilege against self-incriminationo dont want compelledconfession; only voluntary

3 Constitutional provisions used to attack: 1) Due Process must be voluntary(Ashcraft) 2) 6thAmend Rt to Counselswitched in 1964 3) 5thAmend self-incrimination: Miranda1966 extend beyond psychological

coerciono Miranda does most of the work, but it is only relevant in custodial

interrogationso Coles view: If we really were accusatorial, we would put a lawyer in every interrogation

room instead of making the suspect ask for one and look like they have something to hide.

vs. Inquisitorial (civil law countries) = rely on investigative systemo Judges oversee investigationo No privilege against self-incriminationo Rely more heavily on confessions

Evolution of 5thAmend Self Incrim/Monitoring Confessions doctrine:

Case Facts & Reasoning Rule


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Ashcraft v.

TN1944

DUE

PROCESS/

VOLUNTARY

APPROACH

36 hours of questioning = inherentlycoercive. Switch from, was his willovercome to does this practice violateDP?

RULE: Certain police tactics are unacceptable.Individualized inquiry was this D coerced?Some practices threat of physical violence are socoercive that they always violate DP.Dissent: 36 hours bright-line rule doesnt make sense.Should look at whether this Ds will was overcome.

Massiah v.

US19646THRT TO

COUNSEL

APPROACH

Wiretap on friend in a car. There was no

coercion (thus no DP problem). Rt hadattached (judicial proceedings hadbegun) & this was a critical stagefor 2reasons: (1) if you confess, it makes thetrial redundant - whats the point of evenhaving a trial? (2) stage when legal aid &advice would help you

RULE: If rt to counsel has attached, state must ensure a

lawyer is present or D has waived the right if it wantsto interrogate.

Dissent: overbroad rule that will bar many voluntaryconfessions. Underinclusive because cops can just getthe confession before the rt to counsel attaches.Police can ask you about crimes for which you have notbeen indicted cuz rt to counsel doesnt attach to thatkind of interrogation.

Escobedo v.

IL1964

ESPANDED

6TH RT TOCOUNSEL

APPROACH

Very limited holding. Need:(1)focus on the suspect(2)suspect in police custody(3)police trying to elicit

incriminating statements(4)D requested & denied attorney(5)Police gave no warning of rt to

remain silent

RULE: a confession obtained in a police station isinadmissible because of deprivation of rt to counseleven if before formal judicial proceedings.

-Escobedobasically does not allow 6thbefore judicialproceedings; it is almost not good law any more

Miranda v.

AZ1966

5TH

PRIVILEGE

AGAINST

SELF-

INCRIMAPPROACH

Applies only to custodial interrogation.

Based on the assumption that custodialinterrogation is inherently coercive.

Waiver: state must show D knowingly

and willingly waived his rights (not thathe just didnt invoke them)

BRIGHT-LINE RULE: Warnings:(1)Rt to remain silent(2)Statements can & will be used against you ->

consequences(3)Counsel(4)Appointed counsel if cant afford one

-Conduct police must honor rights invoked; stopquestioning if D says he doesnt want to talk-Also advances equality (like Gideon& Douglas); armseveryone w/information

3 Problems w/Voluntary Approach:

(1)Factuallyno one agrees on what happens behind closed doors(2)Conceptuallyif no confession is truly voluntary (why would you confess to something that

will put you behind bars?), were trying to draw a line between permissible and impermissiblecoercive tacticswere sanctioningcoercion

(3)Administrabilityhard to know if a Ds will was overcome; tot. of circ. approacha. Does not lead to many bright-line rules; we want an administrable way to reduce the

risk of a coerced confession

6thAmendment Approach

Good cuz it is administrable: has D been indicted? Then he gets a lawyer if the cops want to getincriminating statements because thats a critical stage.

BUTo (1) Overbroad rule - will bar many voluntary confessions; not directed at coerciono (2) Underinclusive - cops can just get the confession before the rt to counsel attaches


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o (3) Offense-specific: Police can ask you about crimes for which you have not been indictedcuz rt to counsel doesnt attach to that kind of interrogation.

Miranda5thRt to Counsel Approach To Regulating Coercive Police Tactics

Good Things Controversial Aspects

Offsetting risk of compelledincrimination w/rights that, beforeMiranda, did not apply to theinterrogation room

6thdoesnt attach until afterindictment5thapplies when copsarrest & interrogate you beforefiling charges

Is notoffense-specific Administrable bright-line rule

Police wont ever say their conduct isbad need to monitor because theyare caught up in the chase

No alternative solutions worked tocombat coerced confession

Costs lose many confessions because lawyers willalways say dont talk

Lets criminals off on technicalitiesoverbroadruleleads to exclusion of voluntary confessions

Legitimacy: no precedent for 5thAmend rt tocounsel

o 5thsays nothing about custodialinterrogation

o Misreads precedent Escobedowas aboutthe 6thAmend

oFramers only meant formal, legal compulsion

o In Gideonand Mapp, the states were going inthat direction anyway; in Miranda, the factualbasis was police manuals

o More like judicial lawmaking thanConstitutional interpretation

2 things to know after Miranda:(1) What is custody?

Essentially equivalent of an arresto Inherently coercive = reasonable person would not feel they were essentially underarresto Greater than a Terrystop

Yarboroughv. Alvarado 2004o 17 yr old taken to station by parents; held for 2 hrs. is it inherently coercive?o H: No, but its a very close call. The state courts decision that it was not custody was not

objectively unreasonable (standard to overturn in habeas corpus proceeding underATEDPA of 1996)

o Leaves open the question of whether this was custody; shouldyouthbe taken into accountin deciding if a reasonable person would feel free to leave?

(2) What is interrogation? Innis1980

o D invoked rt to counsel. Cops asked each other questions about handicapped kids & D ledthem to the gun.

o H: no interrogation. TEST: Interrogation is

(1) Express Questions (2) Functional Equivalent of questionsIs a statement reasonably likely to elicit

an incriminating response?


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Objective doesnt look to officers intent. Perkins1990

o Cop in jail w/D. D didnt know he was talking to the police.o H: no coercion if you dont even know youre talking to the cops. There is formally custody

and interrogation, but the interplayof custody & interrogation creates inherent coercion. RULE: Its not enough to have a question & custody. Together, they must create a

coercive atmosphere.

M. Modern Watering Down of Miranda1. What does it take to invoke your rights?

D must prove he invoked any Mirandaright Butler

o D had said, Ill talk, but I wont sign anythingo RULE: Implicit waivers are acceptable.

Berghuisv. Thompkins2010o 2 hours of questioning and D did not answer a question. When he eventually answered 3

questions, the court held he implicitly waived his right to remain silent.o

RULE: if you know & understand your rights, answering a question constitutes awaiver. You must unambiguously invoke the rt to remain silent.

*Court now works under assumption that coercion is dispelled once the rights are read &understood.

DavisRULE: Right to counsel must be clearly invoked, i.e. say I wont talk w/out my lawyero Why? The cops have many more restrictions once the 6thRight is invoked.

Shift from heavy burden on govt to prove you waived to burden on D to prove he invoked

reflects modern Courts skepticism w/Miranda. Just reading the rights is a good enough

prophylactic.In defense, its not hard to invoke your rights.

But, under this reasoning, should change warning to say you have right to remain silent, and you mustsay so if you want to assert it

2. What must state do to show waiver?

3. What must police do once youve waived or invoked?

RIGHT TO COUNSEL

Once Rt to counsel invoked police must stop interrogation until counsel is present in theroom (unless D reinitiates the questioning & absent a break in custody) (Minnick)

o Underlying concern= dont want to badger D into giving up rt to counsel or make himthink he doesnt really have it by notgiving him an attorney.

o Shatzer2010 RULE: 14-day break in custody is enough to reinitiate questioning.

Just give Miranda warnings again & need not provide counsel.o Montejo2009 relationship between 5th& 6thAmend. right to counsel

Previously decided that if D requests counsel at his arraignment, that operates asinvoking the right & he has to have one at any interrogation (Jackson)


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Here, the state just appointed a counsel as a matter of course (no invocation). RULE: Once 6thAmend attached, D can be interrogated w/out counsel if D

waives Miranda.

Court felt the warning were enough of a prophylactic to combat badgering Dissent: interrogation is a critical stage.

RIGHT TO REMAIN SILENCE

Once Rt to Silence invokedpolice must stop interrogation BUT can ask you again later ifyoull talk and give Mirandawarnings again

Public Safety Exception to requiring Miranda Warnings in Custodial Interrogation

NY v. Quarles1984Supermarket & cops asked wheres the gun? Its a custodial interrogation &inherently coercive.Reasons for the exception:

Great Cost = innocent people may be harmedo BUTthe 5thAmendment is nota cost-benefit analysis. Its an absoluteright not to have

compelled statements used against you. Why not just not allow the statement? Dont want cops to weigh costs/benefits in split-second situations => on/off switch: is there a

threat to public safety?o TEST: (1) is there a public safety concern?

(2) were questions only directed toward that concern?

Distinction:Actual coercion Presumptive Coercion

Evidence always inadmissible under fruitof the poisonous tree.

Failing to give Miranda does not mean theobtained statement was necessarily coerced.

Violates Due Process its a constitutionalproblem

Miranda is a prophylactic theres noconstitutional problemif the coercion was notpresent.

i.e.- physical *like exclusionary rule good faith exception

***This distinction is the modern debate & basis for claims that Mirandashould be

overturned. Miranda is a prophylactic not compelled by the Constitution.

Other Miranda Rules:


James Impeachmentexception can use invalid confession toimpeach.

Ehlstad

1985

In living room man admits to crime.Taken to station, given Miranda, admits

a 2nd

time.

Police can interrogate w/out Miranda, get a confession, thengive Miranda, obtain a 2ndconfession, and the 2nd

confessionis admissible.-Court basically saying Miranda is a 2nd-tier Constitutionalviolation

Patane

2004

The 5this about compelled statementsnot about evidence. Keeping thestatements out of court is enough of adeterrent on the police.

EVIDENCE: No fruit of the poisonous tree w.r.t. evidenceobtained in violation of Miranda. Its admissible.


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MO v.

Siebert

2004

Common police tactic = ? D w/outwarning, get confession. Then givewarning & get a 2ndconfession that isadmissible under Ehlstad. H: NOT ok.

It was effectively 1 interrogation. Midstream warningsareinsufficient to dispel coercion.Test: whether warning was sufficient to dispel coercionpsychologically

REAFFIRMING MIRANDA

Dickerson2000Congress statute says confessions are admissible if they are voluntary; trying to overrule Scotus and

return to voluntary test.H: (1) Miranda is a Constitutional mandate.

(2) Statute does not meet the constitutional minimum necessary - not an equally effective substituteforinforming the suspect of his rights.

(other alternatives could be ok, but the Court doesnt know of anyCole suggests videotapingconfessions to see the tactics used).

Court is limited to imposing on the states what makes constitutional rightsmeaningful.(3)Miranda should not be overruled.

DISSENT: Together, Quarlesand Ehlstadsupport the dissent in DickersonMiranda should beoverturned.

1. Not all statements obtained in violation of Miranda are inadmissible2. Miranda is thus not a Constitutional command3. Congress may overturn it

N. Due Process & Torture: Miranda, Massiah & The War on Terror Obama administration wants to extend Quarles public safety exception to terrorist interrogations. Quarlessuggests police can use coercive tactics to avert future danger if only the 5this implicated

(not due process any DP violation is not ok).o BUTwhats the public safety concern once youve caught & arrested the terrorist?

Ticking time bomb, others are planning an attack/possibility of accompliceDP Case Facts & Reasoning Rule

Brewer

v.

Williams

1977

Christian burial speech & cop knew Dwas very religious. D had a lawyer whomade the cops promise not to questionD on their drive with him.H: statement is inadmissible because

(1)it was an interrogation and(2) D had not waived his rt to

counsel.

RULE: Deliberately attempting to elicit statements

when lawyer not present violated the 6thAmend. IFF D

has not waived the right.Revival of Massiah6thAmend. approach to regulate coercivetactics.6thTest is subjective intent-based: Did officer intentionallytry to elicit incriminating info in absence of lawyer?- concern is not coercion, but interfering w/attny-clientrelationship(v. 5thobjective effect-based Innistest concern is effects of

coercion)Kuhlman

v. US

1986

Informant was placed in Ds jail cell tolisten to him. He did not ask D anyquestions.H: statement is admissible.

Brewertest: the cop did not intend to elicit statements. Hewas merely a passive informant

Chavez

v.

Martinez

2003

D was questioned while receivingmedical treatment at the hospital.Though D was never charged w/a crime& his answers werent used aginst him,he brought a 5th& 14thDP claim that the

5thAmend: Like Quarles, this case emphasizes that Mirandais a prophylactic, not a constitutional command. It is notviolated until the compelled statement is used against youat trial.


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police violated his constitutional rights.H: no constitutional violation.

Due Process = the tactics used did not shock theconscience. Suggests that some coercive tactics can be a DPviolation the moment the info is obtained (not only whenstatement is used against you). If the state had inflicted theharm instead of taking D already in pain, that may haveviolated DP.see terrorism coercive tactics. Can argue exigentcircumstances.

Inevitable Discovery Doctrine - Williams IIallowed the body in because the cops would have found itanyway.

O. Miranda, Massiahand Interrogation in the War on Terrorism

What is a Violation of Due Process?o Action taken thats unjustifiableo What shocks the conscience stomach pumping in Rochino Any use of pain to get statement violation if used in criminal case.o Its more open whats aviolation if the evidence/statement is not used in criminal case(Chavez)

Should the standard differ given the purpose of the questioning?o Ticking time bomb, war infoo How strong must the governmental interest be for the questioning tactic not to be

conscience shocking?o InAshcraft, there was no sliding scale. A tactic violated or does not violate DP, period.

Modern viewChavezcould allow tactics to avert future danger & not to beused in a trial against D

But, Quarlesdoes not suggest this: actual coercion is never ok.Posner on Torture

Convention on Torture torture is prohibited by the intnl community without exception foremergency.

Laws of war all detainees are entitled to humane treatmento Protects Americans abroad

Concerns that have lead to a per se rule against torture:o Uncertainties, temptation to exploit power, dangers of exceptions

Krauthammer

2 exceptions to per se law against torture are justified: ticking time bomb & leader w/infoo It is immoral not to torture.o Justified when can avert harm to 1000s by inflicting pain on 1

Utilitarian Theory: Individual rights we protect = whole idea of having constitutional rights(1)Protecting 1 persons rights protects all peoples rights.

v.(2)Violating 1s privacy rights will serve greater societal good by averting harm

In the real world, we almost never know:-Right person? Theres a bomb? Torture will work?


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P. Line-Ups and Show-UpsEyewitness Identification

Critical to solving crimes Leads to more false convictions than any other tactic & more correct convictions when its right

o It is extremely powerful evidence in front of a jury Constitutional concern = discerning guilt & innocence

o There is nothing unconstitutional about the procedure except that it leads to falseconvictions; FOTPT, etc.evidence wont be excluded because there is no const. violation

o PROBLEM: Is it even unconstitutional to convict the innocent? Social Science of ID:

o We selectively pay attention to thingso Cross-racial IDso More sure you are, the less accurate you areo Desire to please the police we assume they have the bad guyo Retrieval in a lineup, none of the above is not an option

Due Process & 6thAmend. Rt. to Counsel Regulate ID Procedures

(1)Due Processa. Suggestive procedures likely to lead to a misidentification (like overcoming free will)

(2)Rt to Counsela. Prophylactic: a lawyer overseeing means the police are less likely to use suggestive tactics

Doctrines/Consequences:(1)Out-of court ID = per se inadmissible if taken w/out counsel(2)In-Court ID

a. Inadmissible if tainted by 1stID unless govt can prove by clear and convincing evidence thatthe 2ndID had an independent source

i. Factors from Kirbydecideii.

Its like a harmless error exception(3)Harmless Error (on appeal)

a. Improper out-of-court ID produces an improper in-court IDb. Govt must show harmless beyond a reasonable doubt

i. VERY hard to prove - Would need multiple IDs, lots of other evidencec. HE applies to all doctrines weve discussed so fard. Some errors can be structural you cant tell to what extent they affected the trial like a

biased judge or jury; these will be thrown out

Burden Spectrum(easiest) preponderance of evidence----------clear & convincing -----beyond a reasonable doubt

ID Case Facts & Reasoning Rule

US v.

Wade

1967

6TH

AMEND

initial

approach

The accusedsinability effectively toreconstruct at trial any unfairness thatoccurred at the lineup may deprive himof his only opportunity meaningfully toattack the credibility of the eyewitness

RULE: Rt. to Counsel attaches to IDs done post-

indictment.

TEST for if a 2ndID at the trial can be done:

(1) was the 2ndID tainted by the 1stID?-Factors: discrepancy in descriptions, time between crime& ID, failure to ID before, opportunity to see the crime


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Concern = Fair trial.

Kirby v. IL

1972

6thAMEND

Trial process doesnt start until judicialproceedings begin against you.

RULE: no rt. to counsel at a pre-indictment ID. 6

Concern = delay in getting counsel in to do a lineup.

US v. Ash1973

6th Amend

Counsel is there to advise you. Yourenot there to advise if its just photos.DP is the only possible violation.

Rule: do not have to provide an attny if you show anarray of photos even if the 6 thAmend has attached.

Stoveall

1967

DUE

PROCESS

D taken to hospital room & asked victimif hes the guy (a showup).H: no DP violation.It wasnt unnecessarily coercivebecausethe victim was maybe going to die.

RULE: DP violation only occurs if its (1) unnecessarilysuggestive and (2)conducive to an irreparable

misidentification.

- All showups are somewhat suggestive.- Looks at the police tactic

Manson v.

Brathwaite

1977

DUEPROCESS

Cop bought drugs from D. Lineup was 1photograph left on cops desk. He IDedon 1 photo. Its unnecessarily

suggestive. Just give him a book ofphotos.H: no DP violation.

RULE: No DP violation if the ID is reliable.

Stoveall Test:(1)unnecessarily suggestive

(2) likely to lead to an unreliable IDthis standard looks to same factors as Wadebut placesthe burden on D instead of the govt.Factors to consider for (2) totality of circ:- Opportunity to view D- Degree of witness attention- Time between crime & confrontation- Accuracy of description & level of certaintylooks at the result of the police tactic

Liberal justices = more concerned about tactics & systemic problems (Stoveall)

Conservatives = narrower prophylactic/tot. of circ. test. to decide if justice is done in each case (Manson)

Q. Privilege Against Self-Incrimination and Immunity5thAmendment Self-Incrimination Autonomu & Dignity in the Accusatorial Justice System

Mirandais an extension. 5this about LEGAL compulsion i.e. at trial or subpoena. Protects only the guilty - dont have to admit your guilt Privilege is triggered by any compelled testimony that could lead to any incriminatory evidence

Whendoes the privilege apply? During a criminal proceeding Outside a criminal proceeding if compelled to answer ?s that might lead to incriminating evidence

o Can invoke in civil proceedings/depositionso Cost of invoking = implies guilt

Types of Immunity

(1) Transactional If questioned about a transaction, you cant be prosecuted for that offense

(2) Use Immunity(and Derivative Use) Cant use what is said against D, but can prosecute if police have other evidence


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5thPrivilege & Documents

Voluntarydocuments do not trigger 5thprivilege. No privilege against others testimony. Itsself-incrimination.Personal. Like the 3rdparty

exception.If you write a diary -> can be subpoenaed. Its not compelledtestimony. Its voluntarily written.


Kastigar v.

US

1972

IMMUNITY

QP: How much immunity must the govtgrant in order to take away your rightnot to testify?-Well overbear free will of individualwhen theres no criminal consequence- Police use to ask lower level criminalsabout higher level criminals; they thencant prosecute the lower level

RULE: Use immunity is strong enough to safeguard the

5thAmendment.

- If you invoke the 5th, the state can still prosecute you.- As long as the state says we wont use your answeragainst you,theyve given the full extent of the right.

Dissent: not realistic to know if questions were usedagainst D. Transactional immunity is required.

Fisher v.

US

1976

Documents

D gave his tax documents to his lawyerin an effort to invoke attny-clientprivilege. The docs could have been

obtained from the accountant as a 3rd

party.H: 5thdoes not apply. Docs must begiven over.

RULE: documents are testimonial if the act of

producing them is incriminating.

(1)it shows you have the docs(2)

you authenticate the docs as your own

Contents of the document- They were not created under compulsion- They were not testimonial

US v.

Hubbell

2000

Documents

Broad requests from the govt which Dproduced, thus communicating that thedocs existed & he owned them.

Its testimonial if the act of producing the docs adds towhat the govt knows.

R. Hyper-Incarceration and Its Alternatives

Systemic effects = incarceration is concentrated in particular communities where the most disadvantagedlive

Reform- The political system is not friendly to reform- Institutionalization this is just the way it is- Presumptions: we presume no discrimination, lawyers are effectice, and that the system works

Equality: Warren Court Statements

there can be no equal justice if the kind of trial a man gets depends on the amount of $ he hasno system of justice can endure when it depends on a citizens ignorance of his rights


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Shifts:Totality of Circ/balancing approach toA RULE:administrable (but overbroad &

underinclusive)

RULE back to Tot. of Circ: justice in every case

Consent: Schnecklothno need to warn of right. GatesPC test

SILA:Chimelw/in control of D rule replaced oldallowable full-scale searches

Garner -> ScottDeadly Force & PC

Miranda SILA: Belton-> Gantcompartment of carBetts-> Gideon6thrt to counsel Terrystop and frisk

Samsonadministrative searchStoveallEyewitness IDs look to tactics of police MansonEyewitness IDs look to reliability of

evidence

Mini-Outline:FOURTH AMENDMENT

Overview from entrapment to end of course: Entrapment might not be a constitutional doctrine, but it deals w/police conduct in investigating

crime.

Right to Counsel = important way court protects against interrogationo Reiterates 4thamend balancing: security v. privacy & equalityo Different groups have different sets of rights given the way the law is enforced

Interrogation ends w/Miranda, but to what extent does Mirandahelp w/the problem? Subpoenas & Custodial Interrogation

1. Traditional Rule-Based Approach 2. Modern Balancing Approach

- W & PC make a search reasonable. Its requiredunless theres a categorical exception.

- 4

th

just asks a question of reasonableness.Balance the interests of law enforcement & privacy.

- Autos: PC, no W - Terry& Samsonuse this reasoning

- SILA: no PC or W once theres a lawful arrest - open-ended

- Exigent Circumstances: getting a W would cause a

safety concern or destruction of evidence PC & W are only required for in-home search orarrest or a search of effect

Even with the balancing test, the Court likes tomake bright-line, administrable rules to oversee

the police

Look to the categoryof situationsis itreasonable to require W & PC?

- Border Search: no PC, RAS, or W.

- Terrystop & Frisk: less than PC; only RAS

- Administrative Searches: balancing inquiry

- Consent Search: waived rights makes search

reasonable- Consensual Encounter: fictional reasonable person

standard

Historical shift from Rules -> balancing.

Court was concerned w/checking police discretion during Civil Rights. Now, were concerned w/undermining police ability to combat crime(Nixon war on crime,

Reagan war on drugs, Bush War on Terror) Its hard to investigate drug crimes, but the public wants it. This leads to discrimination based on

an unconscious association between drugs & crime & race.


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INTERROGATIONS3 Approaches to Regulating Interrogations

Due Process/

Voluntariness

6thAmend. Rt. to Counsel Miranda& 5thSelf-Incrim.

Standard: Confession is notvoluntary if itovercomes anindividuals free will.

-Cannot be waived.

- Only after indictment.- Applies only to ?s aboutthe crim for which D hasbeen charged.- Violated when cops elicitstatement after right hasattached, unless D haswaived the right.- Subjective: what wasofficers intent?(Brewer)- Violation need not showcoercion (Massiah)

- RULE. Read the rights.- Only applies to custodialinterrogation.- Objective: would reasonable officerknow he would elicit a response?- Can be waived.

Pros:- furthers equality between rich &poor.- not offense-specific

Concerns: - reliability ofevidence- use of bad policetactics

Interference w/attorney-client relationship

Interrogation is inherently coercive.

Conseque

nces: - Confession cant beused for any purpose

-FOTPTno taintedevidence

Statements not admissiblein case-in-chief (unless toimpeach)

If a rt is invoked, police must obey.Must invoke either right clearly &unambiguouslySilence:- must stop but can retry laterCounsel:- Stop ?s until a lawyer is present(Minnick), unless:(1) 14-day break (Shatzer)

(2) Suspect reinitiates the ?s.-Statements inadmissible at trial, butFOTPT does not apply.- Public safety exception (Quarles)-Impeachment exception.

Problems: -What happened inthe interrogation?-When is free willovercome?Too philosophical.Case-by-case/Tot. of

Circ.

- Does not address coercion- Overbroad: requires alawyer in non-coerciveenvironments- Underinclusive: onlyapplies post-indictment &