ࡱ>   tbjbj 4 ['y///CCC8{t !C`))"***HEHEHEr-/HE?HEHEHE**444HEFt*/*4HE44R_;*@<FCS00`q, ,<,/HHEHE4HEHEHEHEHE$HEHEHE`HEHEHEHE,HEHEHEHEHEHEHEHEHE : Criminal Procedure Outline BASIC PRINCIPLES What is a Criminal Case? Main Rule (L.O. Ward) Did Congress indicate either expressly or impliedly a preference of a criminal, as opposed to civil label? If Congress has indicated a criminal label, is there the clearest proof that the statutory scheme so punitive either in purpose or effect as to negate that intention? Applications Civil Penalties - Ward (1980) Penalty imposed upon persons discharging hazardous substances into navigable waters was a civil penalty Involuntary Commitment - Kansas v. Hendricks (1986) Involuntary commitment of sexual predators civil, rather than criminal, b/c statute did not serve either retribution or deterrence Sex Offender Registration Smith v. Doe (2003) Alaskas mandatory registration for convicted sex offenders upheld, b/c intended to protect public from harm, and not punitive Contempt Proceedings UMWA v. Bagwell (1994) Multimillion dollar contempt fines for violating court order against unlawful strikes are criminal sanctions, b/c happened out of court, didnt affect order of proceedings, and fines were steep. Incorporation Three Approaches to whether BOR was incorporated by 14th Am Current Approach Duncan v. Louisiana (1968) Whether the right is among fundamental principles of liberty and justice Justice Blacks Approach 14th Ams P&I clause meant to incorporate entire BOR Justice Harlans Approach Ignore text of BOR itself, and focus on what rights & principles can be derived from notions of liberty and due process of law, all the while having due regard for state experimentation and disparity Due Process and Incorporated Rights Citizen cannot rely on a right to due process if a specific BOR guarantee would provide the same constitutional protection Where a specific BOR protection has traditionally regulated an area of criminal investigation or prosecution, and yet provides no protection in a particular case, it is very unlikely that a citizen can rely on a more general due process guarantee Independent protection under the DPC remains viable where governmental activity, as in Good, has some purpose other than enforcement of the criminal law Independent protection under the DPC remains viable even in criminal cases where no specific BOR guarantee has traditionally applied New Federalism New Federalism (def): State courts can (and do) construe their own state constitutions to require greater protections than the Court construes the BOR to require; they can do this even when interpreting identical provisions to the BOR in their own constitutions When the Provisions are Identical NY Court of Appeal Case State court can depart from Courts interpretation when state constitution BOR provision identical to Constitutional BOR provision when (1) state statutory law preexisted, (2) state history and tradition contrary to Court interpretation, (3) ?, and (4) states citizenry have distinctive attitudes Retroactivity of New Constitutional Rules Rationales for Courts Rules: Federalism/finality: Interest in finality of state court judgments (e.g., making Miranda retroactive) Reliance/comity: not punishing good faith state court reliance on previous law Objections to Courts Rules: Disincentivizing changes in the law Federal Courts New Rule Benefiting or Detrimental to Defendant in Same Case Main Rule: Court must apply new rule to  s case New Rule Benefiting Defendant in Another Case Decisions Pending on Direct Review  Griffith v. Kentucky (1987) Main Rule: Court must apply new rule to  s case Decisions on Habeas Review  Teague (1989) Main Rule: Court must nevertheless apply rule at time of  s conviction Exceptions New rule places certain kinds of primary, private individual conduct beyond power of criminal law-making authority to proscribe Watershed Rule Exception (see below) Watershed Rule Exception Main Rule IF new rule is watershed rule, THEN Rule is necessary to prevent an impermissibly large risk of an inaccurate conviction, AND Rule alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding / is itself a previously unrecognized bedrock procedural element of a proceeding Applications New Confrontation Clause Rule Whorting v. Bocking (2007) Decision about original understanding of 6th Ams confrontation clause did not create a watershed rule, because wasnt principally about accuracy and was not a previously unrecognized bedrock procedural element New Rule Detrimental to Defendant in Another Case Direct Review ? Habeas Review  Lockhart v. Fretwell (1993) Main Rule: Court must apply new rule to  s case (b/c  has no finality interest) Decision Pending on Direct Review (def): decision still up on appeal from judgment conviction (up to denial of certiorari) when new rule announced State Courts Main Rule Danforth v. Minnesota (2007) State courts are not bound by Courts Griffith-Teague rules w/r/t retroactivity New Rule (def) Revised Definition Butler v. McKellar (1990) IF reasonable minds could have differed as to the result, THEN rule is a new rule Original Definition Teague IF result not dictated by existing president at time  s conviction became final, THEN rule is a new rule SEARCH & SEIZURE Introduction to the Fourth Amendment Reasonableness Clause:  Right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated. The People Main Rule US v. Verdugo-Urquidez (1990) The People refers only to a class of persons who are part of a national community or who have otherwise developed sufficient connection w/ the U.S. to be part of community Applications Non-Citizens in Foreign Countries - Verdugo-Urquidez (1990) (33) Warrantless search of  s Mexican citizen s home in Mexico. Maj (Rehn): 4A meant to apply to national community. Non-resident alien on foreign soil not protected. Dis (Marshall/Brennan): 4A is  unavoidable correlative of gov t enforcement of crim law. Illegal Aliens in U.S.  No answer yet Warrant Clause: and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Dominant Clause Interpretation Searches & seizures w/o warrants presumed unconstitutional (this is changing) Searches & seizures w/o probable cause also generally unconstitutional. State Action Requirement: 4th Am interpreted to apply only against the State & its agents What is a Search/Seizure? Main Rule  Katz v. U.S. (1967) (37) (Harlan s Concurrence (40)) 4th Am Protection ! Search or Seizure ! REOP !  Govt s action violates  s actual (subjective) expectation of privacy ( must take action to manifest this expectation), AND  Society recognizes this expectation as reasonable (also, assumption of risk, public access) Objections to Rule Society s view of REOPs may be negatively affected by gov t action & technological advances Applications Bugging Phone Booth Exterior  Katz  in private phone booth, pulls door closed. Maj (Stewart): Eavesdropping constituted 4th Am seizure (of words) Dis (Blck): Court has stretched Amendments meaning too far Physical Disruption & Inconvenience Generally, innocent people subject to bodily seizure have REOP violation Retained Property Soldal v. Cook County (1992) (43) Familys trailer towed away prior to eviction hearing, w/ sheriff looking on Maj: Dispossession of ones home is seizure Abandoned Property U.S. v. Hoey (8th 1993) (45) No REOP in voluntarily abandoned apartment Smith v. Ohio (1990) (45) REOP in bag one tries to protect from inspection Notes: No REOP in DNA or fingerprints, b/c abandoned Denial of ownership may constitute abandonment. Consensual Electronic Surveillance US v. White (1971) (49)  converses w/ wired gov t informant Maj (White): No REOP for information voluntarily given to 3rd parties. Dis (Harlan): Populace should not be forced to risk hidden recordings. Financial Records  Schultz (1974) (50), Miller (1976) (51) Rule: IF records made accessible to bank, THEN no REOP in them Patriot Act 412-16 permits access to records of US persons in connection to terrorism/intelligence investigations. Pen Registers Smith v. Maryland (1979) (51) Maj (Blmn): No REOP in phone numbers  dialed, b/c accessible to phone co, thus assumption of risk Dis (Mshl): Privacy not discrete commodity, possessed fully or not at all ECPA (1986): Pen register usable only if (1) provider gives consent, or (2) court order obtained on finding that register likely to uncover info relevant to crim investigation. PATRIOT ACT 213 permits use of Pen Registers to obtain telephone numbers, email addresses, and urls. Electronic Pagers U.S. v. Meriwether (6th 1990) (52) No REOP in phone number transmitted to acquaintance s pager, b/c assumption of risk U.S. v. Chan (N.D.Cal. 1993) (53)  REOP in phone numbers found on one s own pager. Public Spaces  US v. Gonzales (9th 2003) (50)  s activity caught on camera installed in hospital mailroom. Room was quasi-public space w/ large windows. Maj: No REOP in the space too public. Trash California v. Greenwood (1988) (54) Maj (White): No REOP in trash put out for collection, b/c accessible to the public (not abandonment rationale) Hedrick (7th 1991), Redmon (7th 1998) say no REOP even if cops came on prop to look Some states disagree Homeless People Conn. v. Mooney (1991) (55) REOP in belongings on public property Gallagher (11th 1995) No REOP in belongings on private property w/o consent Aerial Surveillance California v. Ciraolo (1986)(56): Aerial surveillance of fenced-in yard does not violate REOP, since any member of public could fly over and get a view. Dow Chem v. US (1986) (57) Aerial photographs of protected industrial complex from navigable airspace using hi-tech camera do not violate REOP. Florida v. Riley (1989) (57) Plu (White) Surveillance by hovering helicopter not a search. Con & Dis (5 Js): REOP should depend on whether public ordinarily had access, not whether legally or technically possible. Dog Sniffs - US v. Place (1983) (60), Illinois v. Caballes (2005) (60-62) Maj (Stv): not a search, b/c (a) sniff is limited intrusion; and (b) no REOP in hidden contraband and (c) sniff can only detect contraband Dis (Sou): error evidence, potential for embarrassment, means these like any other Drug Testing U.S. v. Jacobsen (1984) No REOP violation from cocaine field test Skinner (1989) REOP violation for drug testing of urine samples, b/c embarrassing Technologies Heat Sensors Kyllo v. US (2001)(65) Heat sensors outside house detect escaped heat from lights growing mj inside house Maj (Sca): Search where cops obtain info regarding home interior by sense-enhancing technology not otherwise obtainable where tech is not in public use. Policy: protect intimate details of home life (less protection for business places) Flashlights Texas v. Brown (1983) (76) Maj: Not a search when officers shined flashlight into car at night Just the Ear Mankani (2nd 1984) (76) Maj: Not a search when officer just overhead conversation in next hotel room Telescopes - Taborda (2d 1980) (76) Maj: Search where cop uses telescope to look from building A into 17th story window of  s apartment building B. Electronic Locating Beepers In Public  US v. Knotts (1983) (72) Officers installed beeper inside chemical bin (w/ seller s consent) to track  s public movements Maj (Rehn): Not a search, b/c officers could have stood along route and watched. In the Home  US v. Karo (1984) (73) Officers used beeper to determine whether chemical bin was in private place (home) Maj (White): Search, b/c could not have visually verified fact that it was in house. Con (O C): Wouldn t be search where (1) CI brought property in, or (2) not  s prop Policy Note Why REOP expansion: (i) courts unsympathetic in drug cases; (ii) trust police discretion; (iii) believe in need for effective law enforcement. AS: may be better to call these intrusions searches and then argue over reasonableness. Con: kills bright-line rule that warrantless searches are per se unreasonable. Technology: What happens as use expands? Tension Between the Reasonableness and the Warrant Clauses The Per Se Rule Constitutional Search/Seizure ! Warrant ! Probable Cause Criticisms Theoretical: Rule makes warrant clause dominant, when reasonableness clause seems to be Practical: Rule has too many exceptions to be  per se (Scalia Concurrence in Acevedo) Rationales Requires objective inferences be drawn by a detached magistrate rather than the officer engaged in crime fighting (Johnson (1948) (86)) Antecedent requirements prevent ex post justification Allows magistrate to refuse to issue warrant if overall unreasonable, despite P/C, oath, etc. Reduces public perception of unlawful police behavior Procedural hurdle may deter unlawful searches and seizures Not clear how else 4th Am could be practically administered Whats Wrong w/ Indiscriminate Searches? (Amsterdam (88)) Expose people and possessions to govt intrusion w/o good reason Potential for capricious executive action Demonstrating Probable Cause Probable Cause (General Def) P/C to believe/do X is a Fair Probability to believe/do X Relation to Preponderance Federal Law: P/C is less than a preponderance (< 50%) Some States (e.g., NY): P/C is a preponderance. Old Test: Spinelli v. US (1969) (91) Main Rule: IF an individual has P/C to believe or do something, THEN there must be adequate: Basis of Knowledge (BK), AND Veracity (V) Current Test: Illinois v. Gates (1983) (98) Main Rule Totality of the Circumstances Test IF an individual has P/C to believe or do something, THEN, given all relevant circumstances set forth in affidavit, there is a fair probability that contraband or evidence will be found in a particular place (which entails something more than a conclusory statement) Factors to Consider U.S. v. Morales (5th 1999) BK of informer V of informer Nature of the alleged facts (detailedness, degree to which allege criminality) Independent corroboration of alleged facts (can support both BK & V) Rationale Seeks practical, common sense judgment of magistrate. Provides for flexibility where, e.g., very detailed tip from anonymous caller. Standard on Appellate Review Whether magistrate had a substantial basis for finding P/C Basis of Knowledge (BK) BK (def): How an individual knows something Issues On the supporting facts alleged (assuming they are true), is there a fair probability that the culpable facts are true? Is the alleged first-hand knowledge an officers or an informants? Probability on Facts Alleged Hypo 10 people, no id, standing over a dead body. Can cops arrest everybody? AS: given certainty that crime has been committed, failure to detain means letting killer go free. Unacceptable. Maryland v. Pringle (2003) (121) Consented to search revealed cocaine in car containing 3. No one took responsibility. Maj (Rehn): P/C to arrest all 3 car occupants, b/c car occupants often engaged in a common enterprise. People who drive in cars w/dealers likely to have knowledge. Ybarra v. Illinois Maj: Absent individualized suspicion, warrant to search tavern does not extend to search of patrons. Di Re (1948) Maj: Inference that everyone at crime scene is a party to it disappears where informer singles out suspect Irrelevance of Actors State of Mind Devenpeck v. Alford (2004) (123); Whiteley v. Warden (1971) (125) Facts supporting P/C simply have to exist; do not need to be believed by arresting officer Staleness of Information Main Rule: review of staleness challenges is case-by-case; look at maturity of information, nature of crime (ongoing?), habits of , character of items, nature and function of premises searched. US v. Harris (11th 1994) (124) P/C to believe  involved in conspiracy in  88; search warrant not until  90 Maj: P/C in  90 upheld, b/c conspiracy long-standing,  had large house but no visible source of income First-Hand Knowledge is Officer s Presume veracity  Spinelli Veracity (V) V (def): Likelihood that someone is telling the truth Issues Is the informant an accomplice in  s crime? Is he speaking against his interest? Is the informant paid or anonymous, or is he an identified citizen? Has the provided reliable information before? If the informants veracity cannot be established, have police gathered enough other information, including corroborating facts? Or, does the informants account provide sufficiently copious and specific details under Draper? Accomplices Accomplices confession is sufficient to establish P/C Patterson (4th 1998) (112) Citizen Informants vs. Paid/Anonymous Informants Reliable b/c presumed motivated by concern for society Decoteau (7th 1991) Corroboration (Post-Gates) U.S. v. Warner (8th 1990) Reliable CI, and anonymous informant, reported over two days seeing  fire machinegun. Officer checked firearms database and found no registered gun. Maj: Upheld P/C finding, b/c mutual corroboration U.S. v. Peyko (2nd 1983) Anonymous informant reported  receiving weekly drug deliveries via FedEx. Officer found  using FedEx to send/receive packages regularly Maj: Upheld P/C finding, b/c tip and information mutually corroborative U.S. v. Leake (6th 1993) Anonymous informant reported smelling mj from basement of house he did work at. Knew it was mj from his youth. Investigation showed only that house had basement. Maj: P/C finding overruled, b/c detail too unspecific, info too innocent U.S. v. Wilhelm (4th 1996) Reliable CI reported he saw mj at  s home, provided directions to home Maj: P/C finding overruled, b/c no BK: anyone can tell you this. Probable Cause, Particularity and Reasonableness Permissible Evidence Main Rule: 4th Am places no limitation on what type of evidence may be searched for/seized Applications Warden v. Hayden (1967) (126) Maj (Bren): Abolishes mere evidence rule (that search could only be for Fruits, Instrumentalities of Contraband (FIC), not evidence of crime). Rationale: (1) difficult to determine what is FIC and what is ME; (2) ability to take ME is no greater intrusion on privacy; (3) old rule relied on outdated property theory Notes Impact: once P/C satisfied, govt power to intrude and search is great. P/C as to Location of Evidence Main Rule Zurcher v. Stanford Daily (1978) (131) IF P/C to search a place, THEN reasonable cause to believe that specific things to be searched for/seized are on property to which entry sought Search of 3rd Party Premises: Main Rule: 4A does not prohibit searches of premises owned by non-suspects Exception: Searches of law offices (see 133-34) Rationale Alternate rule would drastically reduce search warrants. Criminals would hide evidence w/ 3rd parties. Often insufficient info re: who innocent 3rd parties might be. Applications Zurcher Cops got warrant to search newspaper office, looking for photos to identify student assailant suspects] Dist/App: 4A does not permit warrant to search premises of non-crim 3rd party, unless clear that subpoena would not be obeyed. Maj: Warrants permissible for any property, regardless of owner/occupant, where there is P/C that evidence will be found. Notes Impact: Congress passes Privacy Protection Act (1980), limiting govt searches of newsrooms/newspeopleOnly for FIC unless (a) P/C to believe 3rd party is involved in crime, or (b) quick seizure of materials is nec to prevent death or serious injury Particularity Requirement Rationale: limits officer discretion; pins down cops to facts establishing P/C; prevent expansion of search while in progress. (limit discretion and reduce rummaging) Particularity in Search Warrants Severability: Invalid parts of warrant severable, evidence seized pursuant to valid parts OK Particularity as to Location to be Searched Main Rule: Degree of particularity required in description of location depends upon nature of location to be searched, AND information officer could reasonably & in good faith obtain about location before issuance of warrant Applications Maryland v. Garrison (1987) (135) Warrant specifies 3rd floor apt, but there are two on 3rd floor; Cops attempted to ascertain number of apartments. Search of wrong apt yields contraband and arrest. Maj: Search OK sufficiently particular based on evidence available after reasonable investigation Lyons v. Robinson (8th 1985) (136) Address wrongly described as 325 Adkinson St., not 325 Short St. Maj: Sufficiently particular, b/c unlikely on good faith to be mistake U.S. v. Ellis (11th 1992) (136) Location described as 3rd mobile home at certain road; no other description, and no name of suspect. Description wrong by 2 homes, officers go to right one. Maj: Insufficiently particular, b/c no physical desc, and no name of suspect Particularity as to Evidence to be Searched Main Rule: Degree of particularity required in description of location depends upon nature of items to be searched, AND information officer could reasonably & in good faith obtain about items before issuance of warrant Applications Andresen v. Maryland (1976) (139)  convicted of real estate fraud w/r/t Lot 13T. Warrant specified many documents, then had  catch all clause, including evidence of  crime& unknown Maj: Problematic phrase read into authorization w/r/t Lot 13T Dis (Bren): analyze warrant in terms of actual interpretation by executing officers. Computers Guest v. Leis (6th 2001); U.S. v. Adjant (9th 2006) (142) Rule: If P/C to believe incriminating evidence somewhere on HD, search can be through every file potentially containing it BUT, now govt often required to do keyword searches first, come back later Notes Re: Suppression: on overly-broad warrant, how much evidence is suppressed? If only suppressed outside of scope, then creates incentive for fishing b/c can always give back useless items. Particularity in Arrest Warrants Main Rule: Arrest warrant must describe person to be arrested w/ sufficient particularity Applications U.S. v. Doe (3rd 1983): Warrant authorizing arrest of John Doe a/k/a Ed overbroad Unreasonable Intrusions Despite P/C: Medical Procedures Main Rule Despite P/C, search/seizure may be unreasonable if degree of intrusion outweighs need Applications Winston v. Lee (1985) (144) Cops want  to undergo surgery to remove bullet needed for evidence Maj (Bren): Warrant invalid, b/c intrusive and no compelling need for the bullet Anticipatory (Conditional) Warrants: Constitutional on conditions (see 145) Procedural Requirements on Warrant Content & Notice (see 144-147) Main Rule - FRCrP 41 Officer must serve notice re: search w/ warrant copy, AND leave inventory of property seized. Exceptions: Patriot Act 213: Permits Sneak and Peak Warrants- Cops can engage in covert searches, provide delayed notice. BUT, cops cannot search prior to warrant to determine whether to obtain warrant. Execution of Warrants Scope of Search- Main Rule Can search wherever P/C exists to believe object of search could reasonably be Applications U.S. v. Earls (10th 1994) (138) Warrant to search premises permitted search of garage, office, and shed U.S. v. Gonzales (11th 1991) (138) Search can extend to property of non-suspects on premises Time of Execution Time Window for Execution FRCrP 41(e)(2) Execution within occur within 10 days of issuance (and earlier if P/C later negated) Time of Day for Execution No nighttime searches absent special circumstances Time Search Must End Main Rule Search must end when all materials described in warrant have been found Applications U.S. v. Stiver (3rd 1993) Officers can extend stay to take orders from drug customers at drug den, b/c w/in scope of warrant authorization The Knock and Announce Requirement Main Rule - 18 U.S.C. 3109, 4A IF Officer refused admittance after notice of his authority and purpose, OR Necessary to liberate himself or someone aiding him in executing search warrant THEN officer may break open house door or window to execute warrant Rationales: (1) Protects citizens & law enforcement from violence; (2) Protects individual property rights; (3) Protects against needless destruction of private property Applications Meaning of Refused Admittance Rule: Dependent on totality of the circumstances Applications U.S. v. Knapp (10th 1993) (148) Cops knew  inside, knocked, waited 12 seconds, broke down door Maj:  refused entry Exceptions  No Breaking Rule IF If door to residence already open, OR Cop tricks  to open door (e.g.,  It s FedEx! ) THEN cop need not knock & announce Emergency Circumstances (149-150) R/S of Destruction of evidence Harm to others No Knock Warrants (on finding of exigency) (152) Exigent Circumstances after Knock & Announce Relation to Exclusionary Rule: Violation of K&A rule does not require exclusion (155) Use of Excessive Force Main Rule Force applied must be reasonable in the circumstances Applications Buckley v. Beaulieu (Me. 1908): Officers acted excessively when tore up walls to look for liquor; could have used slender probes U.S. Weinbender (8th 1997): Officers acted reasonably when removed piece of drywall to search for evidence; clear that drywall covering something U.S. v. Myers(10th 1997): Officers acted reasonably when used  shock-and-awe to enter  s residence, b/c  was known to be violent criminal Unnecessarily Intrusive Searches Hummel Jones v. Strope (8th 1994) (158): Unreasonable to keep family staying overnight at birth clinic for hours during night to determine if nurse practicing medicine illegally Assistance by Willing & Unwilling Civilians (see 161) Media Ride Alongs (see 162) Issues Involving Magistrate Competence (see 164-66) Arrests and Material Witnesses Arrest Warrant v. Search Warrant: Arrest warrant: specifies PC for particular person linked to particular crime Search warrant: PC that  (or object) found in particular location at particular time. Review of Warrantless Arrest: County of Riverside (1991) (1975): 4A requires objective and impartial P/C review of warrantless arrest within 48 hrs ( Gerstein hearing ). Arrests in Public: In Officers Presence: Atwater Rule Rule IF officer has P/C to believe criminal violation occurred in their presence, THEN arrest of suspect is reasonable Applications Atwater v. Lago Vista (2001) (167) Soccer mom arrested for not wearing seatbelt Maj (Sou): 4A permits warrantless arrest for traffic violations if P/C Dis: IF cop has P/C to believe fine-only offense occurred, THEN must issue citation unless able to point to specific & articulable facts which reasonably warrant full arrest Otherwise: Watson Rule Rule IF Misdemeanor or felony was committed in officers presence, OR If officer has P/C to believe felony committed out of his presence, THEN arrest of suspect is reasonable (w/o warrant) Applications US v. Watson (1976) (168): Maj: Warrantless arrest in public place reasonable b/c officer had P/C Rationale: Tradition, desire not to hamper investigations Dis (Mshl): Exception too broad, fear of hampering investigation groundless Notes: Better to have a warrant; magistrates P/C determination gets deferential review; also warrant can be used for extradition if suspect flees. Use of Force During Arrest: Main Rule: Officers can use reasonable force to arrest a suspect, and reasonableness depends upon consideration of several factors Factors to Consider (Graham v. Connor (1989) (172)): Severity of crime at issue Whether suspect poses immediate threat to safety of officers or others Whether suspect actively resisting arrest or attempting to evade arrest. Applications Lethal Force Scott v. Harris (2007) (S 17) High speed nighttime chase through Georgia highways ended w/ cop using car to end crash,  s paralysis Maj (Sca): Garner limited to facts, stop justified to prevent harm (per se rule?) Tennessee v. Garner (1985) (172) Felon running from police was shot and killed by chasing officer. Felony non-violent, suspect not known to be violent Maj: Deadly force unjustified,  s 4A rights violated Rule: Deadly force may not be used to prevent felon escape unless 1) necessary to prevent escape AND 2) officer has P/C believe that suspect poses significant threat of death or serious injury to officer or others. Dis (OC): Rule too broad, effectively gives conditional escape right to felons Non-lethal Force Forrester v. City of San Diego (9th 1994) (173) Protesters removed with pain compliance, notably nunchaku. Maj: Force reasonable; cops not required to use least intrusive means; and govt has legitimate interest in quickly dispersing protestors w/ least risk of injury to cops and others. Contra: Headwaters Forest Defense (9th 2000)(175): Cops pepper sprayed chained enviros Maj: Force unreasonable, b/c pain long-lasting; protesters posed no safety threat Adjudicating Claims under 1983 Rule Qualified Immunity IF officer had reasonable belief that conduct lawful at time/law not clearly established THEN officer immune from damages claims Objecting to QI Claim Cop knew action was wrong, Argue QI allows failure to clarify law, providing no guidance for future action. Arrests in the Home Main Rule Payton IF arrest in home permissible under 4A, THEN arresting officers have An arrest warrant OR exigent circumstances, AND, upon entering, reason to believe the suspect is within Meaning of Reason to Believe Some: Equivalent to P/C U.S. v. Thomas (DCC 2005) (183) Others: Less than P/C U.S. v. Magluta (11th 1995) (183) Applications Payton v. New York (1980) (182) Cops had P/C, but no warrant, arrest . Broke in after no response. Maj (Stv): Arrest unlawful, b/c no exigency Rationale: Home is private, protected from gov t intrusion. Doorway Arrests U.S. v. Holland (2d 1985) (184)  entered common hallway to answer doorbell. Cops arrested him w/o warrant. Maj: The arrest took place outside of the home; doesnt include comm hallways Dis: Majoritys decision biased against those with more humble homes. Citizen opens door upon cops ordering him to do so, and is arrested right there Some: Takes place in the home, requires warrant Flowers (10th 2003) (185) Others: If officers remain outside doorway, inform citizen he is under arrest, the arrest is in public and no warrant required Officers wait hours for  to leave home Some: This is OK  U.S. v. Bustamante-Saenz (5th 1990) (185) Homeless People Some: No warrant required  U.S. v. Ruckman (10th 1986) (185) Others: Warrant required unless trespass  Creative Non-Violence (DCDC 1992) Rented Hotel Rooms  U.S. v. Morales (8th 1984) Rule: Warrant req d only if  guest has rightful possession Rights of 3rd Parties During Arrests in Their Homes Rule: Search warrant req d to arrest genuine guests in homes of 3rd parties Applications Steagald v. U.S. (1981) (186) Cops got arrest warrant for Lyons, found he would be at  s house. Searched, found drugs of  s. Maj (Mshl): Cops needed a search warrant to enter  s home to arrest Lyons, b/c no other way to protect 3rd parties from illegal searches Dis (Rehn): Fugitive mobility makes P/C as to location difficult U.S. v. Risse (8th 1996) (187) Maj: Legal to enter  s home only with arrest warrant to arrest  s girlfriend, even though officer knew girlfriend had her own place Rights of Guests in Homes of 3rd Parties Rule: Guest in 3rd party home has standing ONLY IF w/ REOP Applications Overnight Guests  Minnesota v. Olsen (1990) (187) s were at an apartment (not theirs) for few hours cutting up cocaine. Maj: Overnight guest has REOP in 3rd party home; Arrest warrant required. Temporary Visitors Minnesota v. Carter (1998) (188) Maj (Rehn): No REOP for temporary visitors Rationale: tenuous connection to house limited relationship to owner Business transaction (drugs) Con (Sca): 4A only protects in own home (originalist interpretation) Con (Ken): Almost all social guests have REOP, but these were business guests. Dis (Gin): All invited guests have REOP, regardless of purpose Material Witnesses (MWs) Main Rule - 18 USC 3144: IF Affidavit shows (by P/C, says AS) that MW has material evidence/testimony, It may become impracticable to secure MWs presence by subpoena MWs testimony cannot adequately be secured by deposition, AND Detention not necessary to prevent a failure of justice THEN court may order MWs detention No constitutional right to compensation MW has no constitutional right to compensation for time in confinement (Hurtado (1973): $1/day compensation for 150 days confinement not a taking). US v. Awadallah (2nd 2003) (189) Arrest and detention of grand jury witness lawful due to procedural safeguards in place. Safeguards noted: Judicial review of detention at bail hearingsgovt burden to establish no alternative to secure appearance/testimony. 3144 applies to GJ proceedings  can move to preserve testimony by deposition Rule 46(h)(2) requires bi-weekly report on why continued detention. Stop and Frisk The Terry Rule & Its Rationale Rule IF officer has reasonable suspicion (R/S), THEN officer may stop and/or frisk a suspect Rationale Must balance need to investigate crime, protect public safety vs. cost of govt intrusion Necessary to keep S&F activity within purview of 4A. Standard of Review Ornelas v. U.S. (1996) De novo, but courts should review findings of historical fact only for clear error andgive due weight to inferences drawn from those facts by resident judges and local law enforcement officers. The Line Between Stop and Encounter Main Rule: R/S Required ! Stop ! In view of all circumstances, reasonable person would not have felt free to leave, cops intentionally applied means of stop, AND (if non-physical stop)  refused to submit Notes: Is the test really  whether the officers acted coercively? (see Cardoza) Meaning of Reasonable Person Rule: Reasonable Person is Reasonable Innocent Person (Bostick) The Free to Leave Test Cars - Brendlin v. Cal. (2007) (S 25) Maj (Sou): Both driver & passenger deemed seized during traffic stop. If no R/S, then evidence of criminality of passenger must be suppressed. Airports US v. Mendenhall (1980) (209)  acquiesced in airport to examination of id/ticket, questioning in private office, inspection of handbag Conc (Stwt): No stop, b/c events in public, no uniforms or weapons displayed, requested, not demand Florida v. Royer (1983) (218) Agents identified themselves first as cops, only later as DEA agents who suspected  of transporting drugs. Did not return ID or plane ticket, and asked  to go w/ them to room adjacent to concourse.  went, and agents had his luggage brought w/o consent.  opened first suitcase after being asked. Agreed to search of second one. Plu (Whi): Stop occurred, b/c agents kept ID, didn t say he could leave, kept bags Dis:  s seizure was justified by reasonable suspicion by the agents Wilson v. Superior Court (Cal 1983) (212) Stop when officer approached passenger who had put luggage in car, told him police got info that he would have drugs, and asked for consent to search U.S. v. Berke (7th 1991) (212) No stop when officers sat on either side of  in terminal, said they were narc officers, asked for consent to search, said  he had right to leave and deny consent The Joe Morgan Case (213) Yes to stop when cop did not leave Morgan alone after Morgan refused to answer officers questions in airport Factory Sweeps - INS v. Delgado (1984 (213) INS guards placed at exits, each worker questioned. Workers free to walk around. Maj (Rehn): No seizure, b/c guards placed to insure all workers were questioned, and workers were at work and not going to leave anyway. Mere questioning not enough. Dis (Bren): All too coercive atmosphere, including goal of questioning Street Encounters US v. Cardoza (1st 1995) (214) Cops saw  & friend and became suspicious. Pulled up to, asked questions, noticed bullet, frisked and found gun. Maj: No stop, b/c no flashing lights or sirens, car already stopped before cop started talking to , cop stayed in car, no requests to  to come over Bus Sweeps Rule: Stop ! Reasonable person would not feel free to decline officers requests or otherwise terminate encounter Applications U.S. v. Drayton (2002) (217) 3 cops boarded bus. 1 looking rearward from driver s seat, another at back looking forward, other working his way forward.  s consent to search. Not told they could leave. Maj (Ken): No seizure, b/c aisle kept free, cops polite & asked permission, mere badge not enough Dis (Sou): Cops established an atmosphere of obligatory participation United States v. Jackson (5th 2004) Cops boarded, had drug sniffing dog, said passengers could stay or leave, take luggage or leave it. All left. Dog alerted to  s seat, consented, drugs found. Maj: Jackson not seized, b/c cops acted professionally and politely, and inconvenience to Jackson in feeling need to avoid dog by disembarking outweighed by value of stopping drug trafficking. Means Intentionally Applied Brower v. County of Inyo (1989) (224) Cops made blind roadblock around bend to stop fleeing suspect. Suspect approaching from around curve couldnt stop before hitting it, and died. Maj (Sca): Seizure, b/c cops intended to stop suspect w/roadblock, & succeeded Medeiros v. OConnell (1998) (224) Officer who shoots hostage student on bus when intending to shoot gunman does not  seize student for 4th Am purposes.  Suspect Refuses to Submit Cal. v. Hodari (1991) (225)  flees cops, says being chased constituted seizure Maj (Sca):  didn t actually stop; a fugitive isn t all the time seized Dis (Stvn): makes no sense to have different standards for physical vs. non-physical show of authority U.S. v. Lender (4th1993) (227) Cop ordered  to stop on drug suspicion,  kept walking. Dropped gun, moved to pick it up. Said seized before dropped it, w/o R/S, moved to suppress Maj: No seizure was resisting verbally & fumbling for, picking up gun What is Reasonable Suspicion? Main Rule (Cortez 1981 (245)). IF R/S, THEN Not merely officers hunch, BUT Based on totality of circumstances, officer must have particularized and objective basis for suspecting the person stopped of criminal activity. Possible Factors Pattern of activity Suspect unfamiliar with surroundings Activity occurs in day/night High crime area Flight Criminal record consistent with activity Attempts to evade police surveillance Implausible answers during encounter Activity fits profile Comparison to P/C Similarities Common sense analysis, deference to law enforcement expertise, totality of the circumstances approach Differences R/S less demanding than P/C (can exist when P/C doesnt); R/S like fair possibility or possible cause. U.S. v. Windsor (9th1988): 1/40 probability not enough for P/C, but enough for R/S, when suspects fled into hotel with 40 rooms Applications Basic Terry v. Ohio (1968) (191) Veteran cop spies 3 men casing a store multiple times; stops, frisks, find guns Maj (War): Stop & frisk justified, b/c reasonable grounds to believe  armed & dangerous Conc (Har): Stop and Frisk are separate acts  must be independently validated. Conc (White): Constitution permits cops to address anyone Stoppee does not have to answer; can walk awaytime limit to Terry stop. Refusal to answer does not convert RS to PC. Dis (Doug): this is 4A intrusion, and 4A requires P/C Adams v. Williams (1972) (199) Cop got from informant, unknown BK, but knew the guy. Tip that  had gun and drugs in car. After asked to open door,  rolls down window, cop reaches & takes gun. Maj (Rehn): Stop & frisk justified, b/c R/S can be drawn from informant. Less than P/C. Dis (Bren): Don t apply Terry to drugs, b/c frisk likely object of stop, not incident to Dis (Mshl): Informant insufficiently reliable Anonymous Tips: BK & V important; RS permits Lesser Quantity of Evidence Alabama v. White (1990) (230) Cops got anonymous tip about  & drugs. All but one fact of tip corroborated.  stopped, drugs found. Maj: Officers had R/S for stop; though poor BK & V, significant corroboration Dis (Stvn): Activity predicted in tip was completely innocent, and it is commonplace that someone a neighbor might be able to predict it of a person. Florida v. J.L. (2000) (232) Anonymous tip reported that young black male standing at certain bus stop wearing plaid shirt was carrying gun. Found & frisked , turned out to be true. Maj (Gin): No R/S, b/c tip gave no predictive info asserting illegality, & R/S requires that tip be reliable in assertion of illegality, not just in tendency to ID determinate person. Also, no per se rule for guns, b/c of harassment fear. Conc (Ken): Some facts might cure anonymous tip such as this, such as caller ID, possibility of prosecution for false tip, previously reliable anonymous tipper U.S. v. Wheat (8th 2001) (236) Anonymous tip that car engaged in reckless driving. Car stopped. Maj: Stop upheld, b/c drunk driver like a mobile bomb. Cant be consensually stopped. Curable Anonymity U.S. v. Heard (11th 2004) (236) Woman who had just argued w/  told cop he had gun. Officer found gun, but woman disappeared, not found again. Maj: R/S to stop/frisk, b/c face-to-face, cop observed woman, she had rel. to , and could have faced negative repercussions from  Completed Crimes  U.S. v. Hensley (1985) (249) Rule: Terry stops permitted on basis of R/S of crimes already committed Collective Knowledge  Hensley Rule: R/S of one officer justifies another officer s stopping a suspect Use of Race as Factor: Description of Perpetrator - OK Profiling OK - US v. Weaver (8th 1992) (258) Young black man stopped after disembarking in Kansas City Maj: R/S cannot be solely race-based, but permissible as a one of several factors. Notes: Very difficult for  to prove a wrong; State needs to show one other factor Not OK - City of St. Paul v. Uber (Minn.App. 1990), State v. Barber (Wn. 1992) (251) Rule: Racial incongruity out of place not enough for R/S Notes EP Clause violated if race only reason even for an encounter U.S. v. Avery (6th 1997) (252) Other Profiling: U.S. v. Arvizu (2002) (239):  was driving van in southern, rural AZ, known smuggling & trafficking area. Lots of individually innocent things that cumulatively looked suspicious. Drugs found. Maj (Rehn): Totality of the circumstances matters  taken together, R/S; R/S need not rule out possibility of innocence US v. Sokolow (1989) (261); see also U.S. v. Berry (5th 1982) Terry Stop in which R/S based on drug courier profile Maj (Rehn): All factors are relevant; whether or not they are part of a profile makes no difference either way Dis (Mshl): Maj allows stop based on profile, not individualized suspicion. U.S. v. Beck (8th 1998) (255 Maj: Mere fact that  from Cal. cannot add to R/S of drug activity Unprovoked Flight - Illinois v. Wardlow (2000) (256)  fled when seeing cops approach in high drug area. Cops caught up, found gun. Maj: R/S, b/c even though flight not dispositive, it is suspicious. Dis (Stvn): Minorities are suspicious of police; there wasnt R/S Hypo: Silence in face of question? May suggest guilt. Bright Line Rule: Traffic Stops Drivers PA v. Mimms (1977) (202) Rule: During legal traffic stop, cop has automatic right to order driver out of vehicle Rationale: (a) reduces likelihood of concealed attack; (b) reduce traffic injuries. Dis (Mshl): Terry requires nexus between frisk and self-protection Dis (Stvn): Rule could cause more danger, and per se relieves cops reason-giving Passengers MD v. Wilson (1997) (204) Rule: Mimms per se rule applies to passengers Rationale: passengers increase danger to cops; already stopped anyway. Dis (Stvn: Overblown fear, innocent passengers should not have to suffer indignity. Tinted Windows Stanfield (4th 1997) (205) Cops can open door, w/o breaking plane, to visually inspect for weapons or danger Government Regulation NY v. Class (1986) (204) Cop moved papers aside to see VIN # of  s car; found gun Maj: Cop may break plane to move papers blocking VIN # access, b/c regulatory scheme can give rise to DEOP Rationale: Regulatory power over highway outweighs  s interest in protected area. Conc: 4A issue is whether efforts to inspect VIN were reasonable. Hypo Automatic right to frisk trunk/glove box for concealed person/weapon?; Frisk glove box for license/registration? Solution: is there a less intrusive means of obtaining information (e.g. issue ticket based on car license plate)? Quasi-Bright Line Rule: Detention of Occupants of a Home During a Search Main Rule: IF cops have warrant to search a home, THEN they can detain homes occupants Applications Residents Michigan v. Summers (1981) (206): Maj: Cops w/ search warrant can detain residents during warrant execution. Rationale: prevent flight, evidence destruction Non-Residents US v. Fountain (6th 1993) (217): Maj: Under Summers cops can detain non-residents while executing search warrant. Use of Handcuffs - Muehler v. Mena (2005) (206) Cops search alleged gang house w/ swat team; handcuff sleeping occupant, detained and questioned in garage Maj (Rehn): Violence of crime, safety, risk of flight made handcuffs reasonable Conc (Ken): Use of force must be objectively reasonable under circumstances; Dis (Stvn): should give deference to jury determination of excessive force; Should use Graham Test: (a) severity of crime; (b) is detainee subject of investigation; (c) is Mistake Los Angeles County v. Rettele (2007) (S 25) Cops got search warrant for house where suspected black drug dealer lived. Hed moved, they held up two white people in bed, stayed about 5 minutes to search. Maj: Reasonable search, b/c can detain long enough to assure safety through full search, and didnt know suspects werent elsewhere in house, despite seeing couple was white Comparing New York and Federal Approaches NYSUSAArrestP/CP/CStopR/SR/SCommon Law Right of InquiryFounded Suspicion-Request for InformationObjective & Credible Reason- Limited Frisks/Searches for Police Protection Under Terry Main Rule: Search/Frisk under Terry ! R/S of danger to officer or others nearby Applications Basic People v. Russ (NY 1984) (258) Anonymous tip that  giving gun to someone else leads officer to car where he immediately frisks  and finds gun. Maj: No R/S, b/c no reliable knowledge of facts giving rise to R/S she had another gun U.S. v. Rideau (5th 1992) (259): Drunk in high crime area backs away on cops approach. PO pats his pocket to check for weapons, finds gun. Maj: R/S to believe man posed safety threat, b/c dangerous neighborhood, evasive behavior Dis:  just in wrong place at wrong time Search of the Person Minnesota v. Dickerson (1993) (265) Cop frisks , finds item he knows isn t gun, but thinks it s crack. Removes it. Maj (Whi): Terry Stop does not permit mere Search for Evidence U.S. v. Swann (4th 1998) (263) Cop had R/S to frisk . Felt hard object in  s left sock, pulled out, turned out to be five stolen credit cards Maj: Removal justified, b/c same size & shape as box cutter, & sock suspicious Search of Immediate Area Rule Terry permits limited search of area from which a person reasonably believed to be dangerous might gain control of a weapon. Applications Michigan v. Long (1983) (261)  got out of car after crashed, seemed drunk or high. Unresponsive to cops requests, walked towards car. Officer saw knife in car, did search, found mj Maj (O C): Frisk justified, b/c stop temporary and  could have retrieved knife U.S. v. Johnson (5th 1991) (262) Maj: Search of burglar s nearby overalls upheld But see People v. Torres (1984) (261) Rejects Long, b/c unreasonable to assume suspect a risk after stop Per Se Rule for Drugs  U.S. v. Brown (8th 1990) Cops suspected  of drug dealing, searched glove compartment Maj: R/S of violence, b/c of association w/ drugs Protective Searches of Non-Suspects Ybarra v. Illinois (1979) (262) Officers frisked bar patron during warranted search of bar itself Maj: Frisk unjustified, b/c no R/S he was armed & dangerous But see United States v. Reid (DCC 1993) (263) Defendant frisked after officers saw him leave suspected crack house they were about to search. Maj: Frisk justified, b/c higher suspicion w/ crack house than public bar Protective Sweeps of Premises: Rule R/S justifies protective sweep to dispel danger to cops or others Applications: Michigan v. Buie (1990) (264) Officers had R/S (not P/C) to believe Buies dangerous associate might be hiding on premises. Conducted protective sweep, found incriminating evidence. Maj (Whi): Sweep justified, b/c R/S is appropriate balance Conc (Stvn): Safety only justifiable goal; not evidence Dis (Bren): Terry extended too far, P/C rule now swallowed U.S. v. Colbert (6th 1996) (264) Protective sweep post-arrest not justified if no R/S that anyone but arrestee on premises The Line Between Stop and Arrest (and  Frisk and  Search Requiring P/C ?) Main Rules Stop (& ~Arrest) ! (1) Detention temporary, no longer than necessary to effectuate purpose of stop; and (2) methods employed least intrusive possible AND Legal Arrest ! P/C AND Burden is state s to prove that detention not an arrest Notes: Likely Argument: Cops engage in some degree of forcible conduct,  args arrest w/o PC Cops will arg P/C, and in alternative RS plus frisk evidence (gun) to create P/C. Applications Forced Movement to Custodial Area  Florida v. Royer (265) Royer asked to go to room adjacent to terminal; bags taken, cops had ID & ticket Maj (Whi): Illegal arrest, b/c removal to room, investigative steps meant it was an arrest, and valid arrest requires P/C, but no P/C Forced Movements for ID Purposes People v. Hicks (NY 1986) (267) Maj: Stop plus transport to crime scene for ID purposes is permissible Terry stop Permissible Investigative Techniques under Terry Rule Investigation on R/S permitted only to clear up or confirm R/S OK ID Request Hiibel (2004) (269) Refusal to give ID during Terry stop criminalizable, but only if stop had R/S, and if request for ID reasonably related to circumstances justifying stop Questioning Suspect about Suspicious Conduct Verifying info from suspect by communicating w/ others Canine Sniffs Database checks outstanding warrants, license, etc. Non-demanding roadside sobriety tests Not OK Demanding sobriety tests U.S. v. Washington (9th 2004) (268) Cops stopped  to ask about involvement in drugs; kept him in attempt to gain consent to search  s home; Maj: Cops actions went beyond original purpose, req d P/C and warrant Investigation of Other Crimes Rule Prohibited unless attempt to confirm/dispel original R/S raises new R/S as to different crime Applications U.S. v. Millan-Diaz (10th 1992) (271) Cops stopped car on R/S of alien smuggling; found none, but tapped on car panel, heard thud, found drugs Maj: Illegal search, b/c no R/S to believe drugs present U.S. v Erwin (6th 1998) (272) Cops stopped  on R/S of drunk driving; wasn t drunk, but much evidence of drug involvement, rising to level of R/S Maj: Search justified by R/S Consensual Encounter After Stop Ended  Ohio v. Robinette (1996) (272)  stopped for speeding, given warning, then cop asks about drugs, asks to search Maj (Rehn): No bright line rule that  must be told stop over and right to leave; totality of circumstances Interrogation and Fingerprinting Interrogation: Rule: Detaining and forcibly transporting  to station house for questioning is arrest, therefore P/C required, not R/S (Dunaway v. NY (2000) (1979); Kaupp (2003) (273)) Fingerprinting: Davis v. Mississippi (1969) (274) Mass round-up of black kids for fingerprinting & interrogation Maj (Bren): Illegal arrest, b/c 1 fingerprinting too many, & interrogation Hayes v. Florida (1985)(279): Field fingerprinting OK b/c minor intrusion. Time Limits on Terry Stops: Rule Suspect can be detained for no longer than necessary Applications U.S. v. Sharpe (1985) (276) DEA agent and state trooper coordinate to stop two vehicles on R/S of drug possession, stop ends up taking between 30-40 minutes. Maj (Bur): Indefinite delay is arrest, but cops were diligent here Notes Subsequent Cases: uphold Terry stops up to 90 minutes. Show of Force: Rule: Terry permits force sufficient to reasonably effect stop Applications U.S. v. Alexander (2nd 1990) (277) Maj: No P/C reqd to unholster guns when R/S  s drug purchasers Oliveira v. Mayer (2nd 1994) (277) Maj: Not OK to unholster, etc., when little evidence of crime or danger Washington v. Lambert (9th 1996) (279) Two black suspects fitting description of two wanted for burglary stopped by 7 cops, ordered out of their car, handcuffed, and placed in police cars Maj: Use of handcuffs and drawn guns constituted arrest; concern for min Detention of Property under Terry Main Rule R/S can justify detentions of property; dependent on balancing of interests, diligence Applications U.S. v. Van Leeuwen (1970) (280) Officers detained package on R/S for over a day while investigating to establish P/C / search warrant. Maj: Detention for limited time was better than letting package back into mail and later trying to locate; and privacy interest of package-receiver not violated until after warrant was obtained U.S. v. Ramirez (10th 2003) (280) Maj: 28 hour package  stop in order to conduct canine sniff OK on R/S U.S. v. Place (1983) (281) Cops seized  s luggage on R/S at LGA and did canine sniff 90 minutes later. . Delay caused b/c needed to get dog transported from another airport. Maj (O C): P/C req d, b/c  actually traveling w/ luggage, & cops not as diligent as could have been Conc (Bren): Concerned Court made 4A only about reasonableness, not P/C U.S. v. Frost (3rd 1993): 80-minute detention pending dog sniff reasonable when delay couldn t have been prevented. U.S. v. LaFrance (1st 1989) (282) FedEx delivery scheduled at noon;  expected package at 11. Package seized on R/S and sniffed at 1:15, after dog transported to scene. Maj:  s expectations irrelevant; his liberty interest not impaired by detention of package, b/c did not have to stay. Cursory & Minimally Intrusive Searches for Evidence under Terry? Main Rule Searches for evidence require P/C Applications Arizona v. Hicks (1987) (283) Cops lawfully entered apartment from which gun was fired, saw expensive looking stereo, moved turntable in order to get serial number from bottom. Maj (Sca): No searches, no matter how minimally intrusive, OK w/o P/C Dis (OC): Majs distinction is trivial U.S. v. Winsor (9th 1988) (283) Cops got evidence after knocking on hotel doors after robbery with R/S then entering room when robber opened it. Maj: Need P/C to search a dwelling But see U.S. v. Concepcion (7th 1991) (284) Officers took key from defendant and inserted it into apartment door to connect him to drugs there. Maj: Court allowed a minimally intrusive search for evidence on R/S R/S Standard & Probationers U.S. v. Knights (2001) (285) Cops suspected  drug offense probationer (w/ probation terms including voluntary searches w/o warrant), of destroying power transformer. Got R/S to search home. Maj (Rehn): Search reasonable under totality of the circumstances approach, even without the specific terms of  s probation, b/c diminished privacy interests Samson v. California (2006) (288) CA statute provided that parolees be subject to searches without cause by PO s. Samson challenged suspicionless search. Maj: Search reasonable w/o reasonable suspicion; point of probation Search Incident to Arrest; Pretextual Stops and Arrests; Plain View Searches Search Incident to Arrest (SITA) Main Rule IF officer arrests suspect, THEN arrest justifies a warrantless search incident to arrest of The suspect The suspects AIC, AND (with qualifications) beyond Rationales Officer safety Prevent destruction or concealment of evidence Incident to Arrest Temporal Limitations Close Temporal Proximity of S & A Main Rule Rawlings v. Kentucky (1980) (298) IF search & arrest are nearly simultaneous, AND P/C to arrest existed before search, THEN search is  incident to arrest Distant Temporal Proximity of S & A (My Interpretation) Main Rule IF time of search is far removed from arrest of , THEN search not justified under SITA doctrine UNLESS search could have been made on spot at time of arrest Rationale Why penalize the officer for taking reasonable actions (but how can it be a penalty to prevent him from discovering evidence he didnt have a right to in first place?) Applications Chambers v. Maroney (1970) (298) Car impounded & brought to station searched after s arrests Maj: Search not  incident to arrest U.S. v. Chadwick (1977) (298) Footlocker searched at station, 90 min after  s arrest Maj: Search not  incident to arrest U.S. v. Edwards (1974) (298)  arrested, jailed, searched next morning on suspicion arising from investigation Maj: Search justified, b/c would have been legal under SITA at time of arrest Search of  s Area of Immediate Control (AIC) Main Rule IF arrest justifies a warrantless search of a  s AIC, THEN officer has reasonable fear either of destruction of evidence or danger Scope of the AIC Chimel v. Cal. (1969) (291) Officers searched  s entire home w/o consent after arresting him there Maj (Stwt): Reverses Rabinowitz rule allowing search of general area; AIC only Dis (Whi): If P/C and impracticable to get warrant (b/c of evidence dest.), OK U.S. v. Lucas (8th 1990) (292)  tried to get something in kitchen, but handcuffed before. Friends still out of kitchen, uncuffed. Cops search cabinet, find gun. Maj: Court does not doubt w/ hindsight cops decisions about what was w/in grasp of , and friends weren t cuffed yet either U.S. v. Currence (4th Cir. 2006) Cops suspected  of drug dealing, searched inside his bike handlebars, found coke Maj: Search OK, b/c handlebars like anything else w/  s AIC When Scope of AIC is Determined  2 Views At Time of Arrest Davis v. Robbs (6th 1986) (293); Abdul-Saboor (DCC 1996) (294) Cops can search  s AIC at time of  s arrest, even if, at time of search,  under arrest and present AIC doesn t so extend Rationale: Prevent perverse incentive to delay arrests See also Belton & Thornton (w/r/t automobiles, at least) At Time of Search U.S. v. Myers (3rd 2002) (294) Cops can search  s AIC only at time of search See also Arizona v. Gant (2009) (w/r/t automobiles, at least) Cops Can t Create an AIC  U.S. v. Perea (2nd 1986) (294) Cops arrested , brought  s bag to him, searched it under AIC Maj: Cops cannot create an AIC by simulating circumstances that justify SITA Post-Arrest Movements: Rule: Moving AIC permissible where reasonable Applications Washington v. Chrisman (1982) (294) Cop goes w/ arrested suspect to dorm room to get ID, cop remained outside room threshold, went in on  roommate s becoming nervous, saw drug stuff Maj: Cops may move arrested  if reasonable, may maintain custody over moving , & search subsequent AIC Dis (Whi): Cop can t enter dwelling post-arrest more than needed for control/safety Remand: Wash Sup Ct says can t enter residence w/o specific reason post-arrest US v. Butler (10th 1992) (295)  came out of home w/o shoes, glass on ground, cop went w/ him inside Maj: Moveable AIC OK where protecting safety of  Notes Some courts have applied the  automatic search rule of Robinson to containers w/in the AIC U.S. v. Morales (8th 1991) (311) SITA Beyond AIC Upon Exigent Circumstances Main Rule IF SITA can permissibly extend broader than AIC, THEN cop has objectively reasonable belief that arrestees associates will destroy evidence or pose safety danger  Objectively Reasonable Belief ! Reas belief that 3rd parties were in otherwise protected location, AND Reas belief that 3rd parties aware of arrest and might destroy evidence or pose safety danger to officers Applications Vale v. Louisiana (1970) (296) Cops had P/C to believe  sold drugs outside his house; arrested him on his front steps & conducted search of house w/o warrant Maj (Stwt): Search violated 4th A b/c state didn t show exigent circumstances Notes  Danger to officer somewhat redundant here, given Protective Sweep Doctrine SITA of Person Main Rule Incident to arrest, a cop can conduct a full search of the arrested  Rationales Need to disarm suspect to take him into custody Need to preserve evidence for later use at trial Applications US v. Robinson (1973) (299)  arrested, cop finds cigarette box containing heroin during pat-down, searches it Maj (Rehn): Search justified to preserve evidence, protect officer Conc (Pow):  arrested on P/C has DEOP in his person Dis (Mshl): SITA doesn t create free-for-all Chimel proves that SITA w/r/t Automobiles Three Approaches The Law - Gant Approach (Arizona v. Gant (2009) (Stvn)) IF cop arrests either (1) vehicle occupant or (2) former but recent vehicle occupant, THEN cop may search passenger compartment of vehicle ONLY IF Vehicle is w/in  s AIC at time of search, OR Cop has reason to believe vehicle contains evidence of offense of arrest. Scalia Gant Concurrence (Abandon Chimel in car context) IF cop arrests either (1) vehicle occupant or (2) former but recent vehicle occupant, THEN cop may search passenger compartment of vehicle ONLY IF cop has reason to believe he will find evidence of offense of arrest, OR of another crime that cop has P/C to believe occurred Belton-Thornton IF cop arrests either (1) vehicle occupant or (2) former but recent vehicle occupant, THEN cop may search passenger compartment of vehicle Applications US v. Belton (1981) (311) At time of search all four passengers were 100 ft from car Maj (Stwt): Lawful arrest of  in car permits search of entire passenger compartment (not trunk) Thornton v. U.S. (2004) (315)  arrested outside of car; car searched Maj (Rehn): Belton applies even where  is recent vehicle occupant Search Incident to Citation  NOT ALLOWED Knowles v. Iowa (1988) (324)  stopped for speeding, then car searched. Maj (Rehn): Illegal search; SITA does not include SITC; cop can either arrest, or, if R/S of danger, do Terry frisk SITA when Arrest Violates State Law Rule: SITA is constitutional IFF arrest legal under federal law Applications Virgina v. Moore (2008) (33)  arrested unlawfully under state, not fed, law. SITA of person found drugs. Maj (Sca): SITA OK, b/c state law doesn t change meaning of 4A reasonableness Pretextual Stops Main Rule IF cop has adequate evidence (R/S or P/C) to take action w/r/t possible offense, THEN cop may take action w/r/t that offense, irrespective of pretext Applications Whren v. US (1996) (324) Cop stops s on P/C for speeding, sees crack when approaching vehicle;  says speeding pretext of stop, real reason drugs, but no R/S for that Maj: Stopped justified b/c of speeding; officer motivations irrelevant U.S. v. Ibarra (9th 2003)  pulled over w/ P/C for speeding; another cop was ready there with drug-detecting dog. Drugs found. Maj: Initial stop legal under Whren U.S. v. Stewart (2nd) Cop only had R/S to pull over . Asked him out of car (Mimms), saw gun when he did.  wanted suppression b/c no P/C to pull him over. Maj: Whren doesn t apply only where P/C justifies cops action, but R/S too Notes  in Whren wanted rule,  whether cop reasonably would have made arrest for proffered reason. Court said rule is  whether cop reasonably could have made arrest for proffered reason. Use of EPC to Prove Selective Prosecution based on Race Main Rule: IF  can get access to gov t s files for discovery, THEN  must show discriminatory effect & purpose by governmental actors Discrimintory Effect (DE) Rule: DE ! Similarly situated individuals of different race not prosecuted Remedies for Violation Probably $$$ damages only. No conviction reversal. Plain View Searches Main Rule IF object validly seized b/c in plain view; THEN Cops must be in midst of otherwise legal action, AND There must be P/C to believe the object is of an incriminating character Inadvertence not Required Rule: Evidence seized via plain view search need not be inadvertently found Applications Horton v. California (1990) (338) In executing warrant for stolen property, cop looking for weapons he couldnt get search warrant to search for. Found them in plain view. Maj (Stvn): Seizure justified; no inadvertence requirement b/c (1) objectivity, not state of mind of officer, is important and (2) inadvertence req furthers no privacy interests Dis (Bren): Inadvertence req prevents officers from ignoring warrant requirement Evidence Seized in Plain View Pursuant to an Unrelated Search Main Rule IF evidence validly seized in plain view pursuant to an unrelated search, THEN there must be P/C to conduct the search Applications Arizona v. Hicks (1987) (341) Cop validly searching apartment for evidence of gun crime got R/S of stereo theft. Looked under stereo to see serial number. Maj (Sca): Illegal search, b/c cop cant begin unrelated search w/o P/C to do it Plain Touch Tactile Plain View Main Rule IF (non-weapon) object validly seized during frisk, THEN cop must have had P/C to believe object was of an incriminating character on touching it Applications Minnesota v. Dickerson (1993) (342) Cop felt item during frisk, had to push & prod it to determine it was drugs Maj (Whi): Pushing & prodding was further search, so unlawful Automobiles and Other Moveable Objects The Automobile Exception Main Rule IF cops have P/C to believe evidence will be found in area of car to be searched, THEN cops may search car w/o warrant UNLESS they had clear opportunity to obtain warrant before seizing car (? see Johns) Rationales Mobility of cars (Carroll) DEOP in car (as opposed to home) (Carney, Labron, Dyson) Notes Automobile Exception vs. SITA AE: Cops must have P/C to believe evidence in area of car to be searched SITA: Officers only need P/C to arrest in order to execute search Applications Carroll v. U.S. (1925) (344)  stopped while driving in heavy bootlegging trafficking area. Warrantless search turned up alcohol behind seat upholstery. Maj (Taft): No warrant reqd b/c not practical b/c cars mobile Chambers v. Maroney (1970) (345) Suspects meeting description arrested & car driven to station, where searched extensively w/o warrant. P/C to arrest (P/C to search not an issue). Maj (Whi): No warrant reqd, b/c w/ warrant or w/o is no greater privacy infringe Conc/Dis (Har): Maj wrong to say w/o warrant no greater infringement Coolidge v. New Hampshire (U.S. 1971) (348) Cops seized  s car after arrest, searched it 2 days later and twice more over months Plu (Stwt): Search req d warrant, b/c cops had time to get warrant Motor Homes  Cal v. Carney (1985) (349) Cops searched parked mini motor home w/o a warrant. Corrobd tip of crime. Maj (Bur): No warrant reqd, b/c dont want to make cops make judgments about vehicles capability of functioning as home (unless its clear it is so functioning) Diss (Stvn): Since motor homes both homes & cars, prefer warrants Airplanes U.S. v. Nigro (6th 1984) AE applies to airplanes Movable Containers Containers out of Car Main Rules Seizure ! P/C, ~Warrant Search ! P/C & Warrant Applications U.S. v. Chadwick (1977) (351) Cops seized and searched footlocker w/ P/C to do but no warrant. Maj (Burger): Warrant not req d for seizure, b/c mobile, but is req d for search, b/c containers not open to public, not subject to inspections, contain pers items Containers in Car Two Approaches The Law - Acevedo Approach Main Rule IF P/C to search whole car OR containers therein, THEN no warrant required to search any items in car Applications California v. Acevedo (U.S. 1991) (353) Cops had P/C to search bag in car, but nothing else in car, and no warrant Maj (Blmn): No warrant reqd, b/c same REOP, same destructibility Dis (Stvn): Anomalous results: more protection out of than in car Passengers Property Too Wyoming v. Houghton (1999) (360) Cops had P/C to search car for drugs. Searched passengers purse. Maj (Sca): No warrant reqd, because DEOP while in car, & chance of hiding evidence w/ passenger Notes Even after Acevedo, still must ask WHAT there is P/C to search for This rationale does NOT apply to searches of person U.S. v. Di Re Sanders Approach Main Rules P/C to Search Entire Car ! No warrant needed to search container P/C to Search Container Only ! Warrant needed to search container Applications Arkansas v. Sanders (U.S. 1979) (352) Facts: Cops had P/C to search suitcase in trunk, but not anywhere else Maj: Warrant reqd to search the suitcase. U.S. v. Ross (U.S. 1982) (352) Facts: Cops had P/C & warrant to search entire car, including bag Maj (Stvn): Warrant not reqd to search bag Dis (Mshl): Anomalous results: more general cops suspicion, more power Delayed Searches of Containers US v. Johns (1985) (359) Cops remove packages from trunk, place in DEA warehouse, search 3 days later Maj (OC): Cops not required to keep packages in vehicle. Delay was reasonable; But indefinite retention not OK, and s may make unreasonable search args. Exigent Circumstances (EC s) Main Rule IF ECs & P/C to search/arrest, THEN cop may search/arrest w/o warrant Exigent Circumstances Generally Dorman Factors Justifying Exigency w/r/t Warrantless Entry of a Residence Gravity or violent nature of offence Whether suspect reasonably believed to be armed Clear showing of P/C to believe suspect committed crime Strong reason to believe suspect is on premises being entered Likelihood of escape if not swiftly apprehended Peaceful circumstances of entry See Dorman v. U.S. (DCC 1970) (369) Relevance Seriousness of the Offense Serious Offenses - Mincey v. Arizona (1978) (372) Maj: No per se rule allowing warrantless entry for homicide Minor Offenses Welsh v. Wisconsin (1984) (373) Maj: Not justified to enter home w/o warrant to preserve evidence of drunk drivers being drunk; offense not serious enough Specific Categories of Exigent Circumstances Hot Pursuit: Def: Cops pursuing suspect for offense, and suspect knows of pursuit Applications Warden v. Hayden (1967) (364) Cops chase  into his home; find guns in washing machine Maj: Hot Pursuit justified entering to arrest w/o warrant, b/c prevent  s escape, evidence destruction, threat to public safety U.S. v. Santana (1976) (364)  standing in doorway of home when cops approached; she ran in; cops followed Maj (Rehn): Hot pursuit justified entry  s Awareness Relevant  Welsh v. Wisc (1984) (364) Public Safety: Def: Delay in obtaining warrant would, on objectively reasonable basis, create significant risk of harm to cops or public Applications NO - U.S. v. Williams (6th 2003): Maj: Water leak not a risk of danger justifying warrantless entry. YES Brigham City v. Stuart (2006) Cops heard & saw fight going on at loud party at 3 a.m.; went in to stop Maj: Risk of serious injury to home occupant justifies warrantless entry Risk of Destruction of Evidence: Def: Risk of destruction in time it would take to get a warrant Applications Richards v. Wisconsin (1997) (371) Maj (Stvn): No per se exception to knock and announce rule in drug cases MacDonald (2d 1990) (364): Maj: entry justified where suspects jumping from windows after cops announce presence after drug buy. Ongoing undercover operation irrelevant. Impermissibly Created Exigency Narrow Approach Rule IF cops act in an entirely lawful manner, THEN they do not impermissibly create exigent circumstances Applications see MacDonald (above) Broad Approach Rule: Cops cannot deliberately create exigent circumstances, but do not need to go out of their way to avoid creating them Applications U.S. v. Timberlake (DCC 1990) (375) Cops knocked on door of suspected drug den, entered after hearing scurrying Maj: No EC, b/c evidence that they deliberately created exigency U.S. v. Rico (5th 1995) (375) Drug conspirator arrested outside den after stashing drugs in car Maj: EC, b/c dont second guess cop tactics unless unreasonable or cops employed them w/ specific intent to circumvent warrant req Prior Opportunity to Obtain a Warrant Two (Inconsistent?) Rules Rule 1: Foreseeability Important IF cops reasonably foresee ECs will arise, AND have time to obtain a warrant before the exigency occurs, THEN no exception for ECs Rule 2: Delay is Permissible Rule: Cops may delay getting warrant until events have proceeded to point where they can be reasonably certain that the evidence would ultimately support a conviction. See United States v. Miles (2nd 1989) (377) Relevance of Electronic Warrants FRCrP 41(d)(3)(A): warrants may be issued electronically U.S. v. Cuaron (1983) Availability of electronic warrants in jurisD relevant to determination of ECs Seizure of Premises to Secure Search Warrant Main Rule IF cops have reliable information that premises contain evidence of a crime, THEN cops may seize premises for reasonable period time to secure search warrant Applications Illinois v. McArthur (2001) (379) Cops had P/C to believe  had mj in home. Kept him out 2 hours to get search warrant. Maj (Bryr): Warrantless seizure, given P/C of drugs, risk of destruction of evidence, limited time period, permission of  to enter w/ officers Segura v. U.S. (1984) (378) Cops arrested 1 for drugs, took him to apartment of 2, arrested him, and seized apartment w/o warrant until search warrant obtained Conc (Bur): Seizure w/o warrant reasonable, even w/o ECs Administrative & Special Needs Searches General Rule  Reasonableness Safeguards applicable to searches/seizures for purposes beyond criminal law enforcement determined through reasonableness analysis, which entails balancing need for & rational basis of particular search/seizure against degree of invasion upon personal rights that search or seizure entails Administrative Searches Home Searches Main Rules Admin search of home ! Inspection Warrant, BUT Finding that search complies w/ reasonable administrative scheme ! Inspection Warrant Applications Camara v. Municipal Court (1967) (383) Maj (Whi): Inspectors did not need P/C to believe dwelling in violation of code Dis (Har): This trivializes warrant requirement Notes Judicial warrants still require P/C - Griffin v. Wisconsin (1987) (384) Searches of Businesses: Rule for Warrantless Inspections Reasonableness of warrantless inspections pursuant to an administrative scheme for inspection of businesses: is buttressed if business is in a closely regulated industry (Rationale: DEOP) requires a substantial govt interest informing the scheme pursuant to which inspection made that warrantless inspections be necessary to further the scheme (ratl basis) that schemes inspection program, w/r/t certainty & regularity of application, provide constitutionally adequate substitute for a warrant Closely Regulated Industry Relevant Considerations Degree to which the industry is regulated Degree to which industry has historically been subject to regulation Constitutionally Adequate Substitute for Warrant (CASW) CASW ! administrative scheme serve two traditional functions Advise owner of premises that search being made pursuant to law Have properly defined scope Limit discretion of inspecting officers Function 1 Function 1 ! Scheme sufficiently comprehensive Owner of property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes Function 2 Function 2 ! Scheme carefully limited in time, place, and scope Applications Burger v. New York (1987) (385) NYS auto chop-shop regs. Violation of regs also violation of criminal law. Maj (Blmn): Search upheld, b/c (1) closely regulated industry, (2) substantial interest in regulating, (3) surprise inspections necessary, (4) statute informs owner well enough, and is limited to daytime hours, as to be constitutionally adequate substitute for warrant Dis (Bren): Unless inspection is included (bootstrapping), junkyards arent more regulated than many other businesses; also, 4A should apply to searches for evidence of criminal acts even if searches also serve admin purpose Notes AS: Burger is troubling b/c blurs line between criminal and admin searches. Element of surprise is fake issue; really its about whether to burden officers U.S. v. Hernandez (5th 1990) (392) Officer suspecting truck carrying drugs opened inspection port to check cargo temp, smelled drugs, opened and found them. Maj: Search justified under Burger, though no other warrant clause exceptions Administrative & Special Needs Searches & Use of the Criminal Law Administrative Searches Rules Govt may address major social problems both through warrantless admin scheme & penal sanctions BUT the govt cannot use such a scheme to enforce the criminal law Applications Burger Maj: State may set up admin scheme that sanctions activity that is also criminal activity U.S. v. Johnson (10th 1993) (394) Rule: Federal agents may not cloak themselves w/ authority granted by state inspection statutes in order to seek evidence of criminal activity and avoid 4A warrant requirement Special Needs Searches Rule: Govt may not use law enforcement, including threat thereof, to achieve special needs, and special need may not be ordinary enforcement of criminal law itself Applications Ferguson v. City of Charleston (2001) (415) Indianapolis v. City of Edmond (2000) (426) General Rule (?) An admin scheme may address the same problems as criminal law, but criminal law enforcement cannot be an integral part of or goal of an admin scheme Special Needs Searches & Seizures Main Rules Special Needs (def): Special governmental ends beyond the normal need for law enforcement [primary purpose] against the person(s) or thing(s) being searched/seized Reasonableness Thereof: Balance: Govt interest Degree to which search furthers interest (rational basis) R/DEOP vs. degree of privacy intrusion (best if as little as possible) Special Needs Searches/Seizures Allowing/Requiring R/S School Searches New Jersey v. TLO (1985) (395) Maj: student handbag search w/ R/S of cigarettes justified on basis of: Safety and Health in Learning Environment School Discipline. Cornfield by Lewis (7th 1993) (396) Maj: Permits limited strip search of boy believed to be crotching drugs. Beard v. Whitmore (11th 1997) (396) Boys, then girls, stripped searched in bathroom to find stolen $ Maj: Qualified Immunity in 1983 actions unless clearly established violation of constitutional law. Searches of Government Officials OConnor v. Ortega (1987) (395) Searches of Probationer Houses Griffin v. Wisconsin Suspicionless Searches/Seizures Main Rule IF Govt interest would be frustrated by individualized suspicion, AND Special Needs search is otherwise reasonable (see above), THEN search may be permitted w/o individualized suspicion Applications Drug Testing (Searches) Additional Considerations for Reasonableness Record of past abuse in subjects of testing Use of law enforcement as means to the goal of the testing (but ~necessary) Skinner v. Railway Labor (1989) (397) RR regs req suspicionless drug testing for all employees involved in accident. Maj (Ken): Testing justified by balancing state interest vs. minimal intrusion Dis (Mshl): (1) this is major intrusion w/o PC; (2) Diff from other SNS because no individualized suspicion here. Natl Treasury v. Von Raab (1989) (399) Mandatory drug of 3 categories of customs applicants Maj (Ken): Strong govt interests for front-line and gun-carrying jobs: (a) Integrity of front line officers; (b) Capacity of officers carrying firearms Dis (Sca): No record of abuse here, and costs not utterly of catastrophic Ferguson v. Charleston (2001)(415) Hospital policy to test pregnant mothers for cocaine use, send it on to cops; women notified of this, purpose was largely scaring them Maj (Stvn): Need warrant & P/C here, b/c primary purpose is to use law enforcement Dis (Sca): Examining urine is not a search under 4A Safety Searches in Airports, Subways, etc. Additional Considerations for Reasonableness Safety search reasonable to the extent: No more ex/intensive or durational than necessary, in light of current tech, to detect weapons or explosives Confined in good faith to that purpose (search geared only towards finding bad stuff) Any stigma of being searched minimized (everyone, out in the open, etc.) All travelers searched Travelers notified in advance Travelers free to refuse the search & choose another form of travel Airport U.S. v. Marquez (9th 2005) (421) Random airport search turned up cocaine Maj: Search reasonable, given importance, randomness, etc. Subway Macwade v. Kelly (2nd 2006) (422) Random every 10th searches on NYC subways Maj: Search reasonable; no challenge to effectiveness will be heard Roadblocks, Checkpoints, Suspicionless Seizures Additional Considerations for Reasonableness Lack of officer discretion Ordinary law enforcement not primary purpose License/Registration Stops Delaware v. Prouse (1979) (423) Cop stopped  w/o R/S, to check license & registration Maj: No Terry stops for license/registration w/o R/S, b/c check on discretion, less intrusive alternatives exist Border Policing  U.S. v. Martinez-Fuerte (1976) (424) Permanent checkpoint allowing for suspicionless checks at border Maj (Pow): Stops OK, b/c interest in border control, lack of discretion, fixed Sobriety Checkpoints - Mich. State Police v. Sitz (1990) (424) Fixed sobriety checkpoints for highway safety Maj (Rehn): Permissible, b/c special need need not be beyond criminal law enforcement; rational basis test for effectiveness Notes Court distanced itself from Sitzs reasoning in Edmond Drug Checkpoints - City of Indianapolis v. Edmond (2000) (426) Drug search checkpoints (w/ dog sniff) Maj (OC): Unconstitutional, b/c primary purpose is drug interdiction Terrorism Checkpoints OK, see U.S. v. Green (5th 2002) (433) & Edmond dicta Investigating Another Crime - Illinois v. Lidster (2004) (432) Checkpoint to find witness for hit-and-run one week prior Maj (Bryr): Checkpoint OK, b/c target is NOT object of seizure Consent Searches Consent of the Searched/Seized Party Main Rule IF searched/seized party deemed to voluntarily consent to search/seizure under totality of the circumstances, THEN no degree of suspicion required for search/seizure BURDEN: On government (Bumper v. N.C. (1968) (460)) Whether Consent At All Rule: Actual Consent ! Consent inferable on totality of the circumstances Applications U.S. v. Price (7th 1995) (464)  replied to  Do you mind if I search w/  Sure. Didn t object to search. Maj: On totality,  consented. Totality of the Circumstances  Factors to Consider (Gonzalez-Basulto (5th 1990) (460)) Voluntariness of  s custodial status Presence of coercive police procedures Extent and level of  s cooperation w/ police  s awareness of right to refuse consent  s education and intelligence  s belief that no evidence will be found (but Mendenhall casts doubt on this one) Applications  s Awareness of His Rights Schneckloth v. Bustamonte (1973) (457) Cop asked driver if he could search car; said sure, go ahead; did not inform rights Maj (Stwt): Knowledge of right-to-refuse relevant factor, but not dispositive; not like Miranda not fundamental trial right Ohio v. Robinette (1996) (463) The one more thing before you go case Maj (Rehn): Consent voluntary, no req to tell  he is free to leave Custody Not Dispositive  U.S. v. Watson (1976) (459)  consented to search while under arrest on a public street Maj: Consent voluntary, despite fact of arrest Coercive Police Behavior Justified Threat of Warrant OK  U.S. v. Duran (7th 1992) (461) Cop threatened to get warrant if  didn t consent, but he had P/C Maj: Threat didn t invalidate consent Other Threats Not OK  U.S. v. Ivy (6th 1998) (462) Cop threatens to take awayt  s child Maj: Consent tainted  s Education & Intelligence  Zapata (10th1994) (464)  Mexican national consented to search; apparently docile b/c of upbringing Maj:  s subjective attitude towards police authority irrelevant Consequences of Refusing Consent  U.S. v. Prescott (9th 1978) (459) Rule: Cop cannot consider refusal to permit consent as building P/C Third-Party Consent Main Rule IF cop obtains voluntary consent to search/seize property of a 3rd party w/ Actual Authority over property, OR Apparent Authority over property, THEN no degree of suspicion required for search/seizure Actual Authority Def: Authority over property attributable to persons generally having joint access or control for most purposes Applications US v. Matlock (1977) (465) Co-tenant consented to search of  s house. Maj: Search OK, b/c she had right to permit entry, so  assumed risk Apparent Authority: Def: Authority over property which cop reasonably believes that a person has Reasonable Belief Three Questions Would reasonable cop never be justified in believing that consenter has authority, no matter what he says? Would reasonable cop usually think consenter has no authority, but could think so if consenter provides additional info indicating common authority? Would reasonable cop usually think person in consenters position has authority? Limitations Duty to Investigate (possibly just 9th Cir) Rule: Apparent authority ! cop reasonably inquired into basis & extent of consenter s authority Mistakes of Law Rule: Apparent authority ! not inferred on basis of mistake of law Applications Illinois v. Rodriguez (1990)  s gf moved out, kept key w/o permission, let cops in, they didn t know all this Maj (Sca): 4A promises no unreasonable searches, not searches only w consent. Dis (Mshl): Can t search if  doesn t voluntarily assume risk of 3rd party consent. U.S. v. Jenkins (6th 1996) (467) Rig driver gave cops consent to search, said Its not my call, but the owners Maj: Consent valid, b/c drivers usually have consent, he had access, no policy Mistake of Law Stoner v. California (1964) (467) Cops got consent to search guests room from hotel desk clerk Maj: Unrealistic to believe clerk had authority Duty to Investigate U.S. v. Dearing (9th 1993) (467) Cops got consent from live-in babysitter, but didnt ask about extent of authority Maj: Search invalid, b/c cops didnt ask about her authority over all of house Family Members Rule: Parents, children, & spouses presumed to have authority over property unless  can show that consenter was clearly denied access Exception to Main Rule: If  Present & Objecting to Third Party Consent IF  is present, AND  objects to cops search, THEN consent of 3rd party does not make search reasonable under 4A Applications Georgia v. Randolph (2006) (470) Separated wife gave cops permission to search house for coke;  objected Maj (Sou): Search not reasonable, b/c social expectation is you cant go in if one of occupants objects Dis (Rob): 4A about privacy, not social expectations, & co-habitants assume risk Scope of Consent Main Rules: IF an object was permissibly found through a consented-to search, THEN, given the consented-to object of the search, the cop could reasonably have performed that search Notes: Ambiguity is construed against the citizen Applications Florida v. Jimeno (1991) (478) Cops got consent to search car for narcotics, looked inside paper bag in car Maj (Rehn): Consent to search car for drugs includes consent to search containers in car that might contain drugs Dis (Mshl): General consent ambiguous, cops should have to ask specific permission Ambiguity U.S. v. Zapata (11th 1999) Maj: Consent to search of car includes search of secret compartment U.S. v. Turner (1st 1999) Cops got consent to search  s house for violent assailant (thought it might be ); found picture of victim on computer screen, searched and found child porn Maj: Consent did not include computer, b/c assailant couldn t be hiding there U.S. v. Blake (11th 1989) Maj: Consent to search of  person does not entail crotch frisk Withdrawal of Consent Main Rule:  may withdraw consent to search/seizure prior to its completion Whether Consent Withdrawn  U.S .v. Gray (8th 2004) (480) Maj: Expression of impatience not enough to imply withdrawal of consent Whether Withdrawn Consent Suspicious US v. Carter (DCC 1993) (481) Maj: Withdrawal not itself suspicious, but manner of it can be, given other factors Dis (Wald): Any use of withdrawal of consent in suspicion invalidates conl right U.S. v. Wilson (4th 1991) (481) Maj: Angry withdrawal of consent to search did not add to R/S; must be independent Credibility Determinations of Officers Trial courts usually believe cops over s Standard on Appellate Review: Clear Error IF District Court s decision to believe cop Clear Error, THEN Officer testimony implausible or contradictory, OR External evidence corroborates  over cop. Wiretapping, Undercover Activity Wiretapping Generally: (seizure of words) Two Views on 4A Applicability Modern View  REOP Rule: Eavesdropping Involves REOP Violation ! 4A Applies See Silverman (1961), Katz (1978) Old View  Trespass Required Rule: 4A Applies ! Eavesdropping Involves Trespass See Olmstead (1928), Goldman (1942), On Lee (1952) (484) Undercover Agents and Surreptitious Recordings Main Rule IF consensual encounter between gov t agent/informant &  triggers 4A protection, THEN agent/informant s actions extend beyond scope of  s permission Applications: Gouled v. U.S. (1921) (486) Gov t informant business associate of  entered his office & got papers on pretext of social visit Maj: Search violated 4A, b/c went beyond scope of  s (implicit) permission Lewis v. U.S. (1966) (485) Drug sale between gov t agent &  in  s home Maj (War): No 4A violation, b/c no REOP in secrecy of drug buyers, even in home Dis: Consent obtained through  trickery - material failure to disclose. Wiretapping & Eavesdropping Berger v. New York (1967) (475) Maj (Clark): Wiretap statute unconl b/c without adequate supervision or procedures Rationale: (a) crime specification not required; (b) no requirement of description of conversations sought; (c) overly extended length of time permitted; (d) overly permissive std for extensions; (e) no provision for termination once sought evidence found; (f) statute lacked notice and return procedures. Federal Wiretap Statute: 18 USC 2510-2520 Procedural Safeguards: Coverage Interceptions: aural acquisition or acquisition otherwise of any wire, electronic, or oral communication through any device, when none of parties surveilled consents Video Surveillance: Not covered, but Court borrows Wiretap Stat procedures(a) video is least intrusive measure; (b) warrant must describe area videotaped; (c)limited time period; (d) minimization requirement (Koyomejian 9th (477fn35)) Prohibition & Exclusions Prohibited: Unauthorized interceptions Exclusion: Info obtained in violation cannot be admitted in evidence Authorization Various Crimes, including computer fraud, chemical weapons, terrorism Procedural Requirements for Application (see 488) Order Issued by the Court Orders ex parte may be given upon various conditions (see 488) Government must show that normal investigative procedures unlikely to succeed if tried or will be too dangerous Particularity Requirements (see 488-89) Time Limits No time period longer than necessary to achieve objective, OR 30 days Extensions only upon application showing necessity Minimization Officers must stop monitoring as soon as it becomes apparent that conversation is not about the criminal activity that justified the courts order Scott v. U.S. (1978) (490 n.34) Agents turn on tap, never turn it off Maj: Although no cops had no intent to comply w/ minimization, tap OK b/c agents only intercepted phone calls covered by warrant. Exigent Circumstances Court order can be bypassed for no more than 48 hours if P/C to believe immediate danger of death, etc. (see 490) Inventory Party whose communications intercepted must receive notice in less than 90 days, unless ex parte showing of good cause made Remedies Exclusion on showing of 1 of 3 things (see 491) Roving Wiretaps Wiretap can be a moving one, upon authorization Intelligence Surveillance: Domestic Security Surveillance - US v. US Dist. Ct (1972) Maj: Domestic Security Surveillance is subject to 4A warrant req (no opinion rendered on presidents powers over surveillance of agents of foreign powers) Foreign Security Surveillance Forint Exception to Warrant Requirement Rule (In re Directives) IF surveillance conducted to obtain foreign intelligence for natl security purposes, directed against foreign powers or agents thereof reasonably believed to be outside of U.S., THEN no warrant required under 4A, but still must be reasonable FISA Interception of foreign intelligence communications requires Showing on P/C that target of surveillance is foreign power or agent thereof Request to 1 of 11 district judges for an order Notice unless AG determines natl security interest in secrecy Presenting application for order on motion to suppress unless government decides not to on natl security grounds Court order unless exigent circumstances justify it, for up to 72 hours for an individual and up to a hear for foreign governmental entities That the surveillance have foreign intelligence as a significant purpose In re Directives (FISCRev 2008) Govt issued directives to communication company pursuant to now-expired provisions of FISA to assist it in warrantless gathering of intelligence on foreign powers or agents reasonably believed to be out of the U.S. Maj: Challenges legal b/c no warrant reqd under 4A or (at the time) FISA (for 90 days), and amended FISA otherwise passes reasonableness test as special need Considerations in Statutes Favor P/C requirement Durational limit of 90 days Showing of particularity reqd Showing of necessity reqd Constrained risks of error & abuse Effective minimization procedures No judicial review counterbalanced by trusting in govt good faith In re Sealed Case (FISCRev) Maj: Upheld significant purpose revision to FISA from primary purpose under PATRIOT Act THE EXCLUSIONARY RULE (10/19-10/26) Intro: The Exclusionary Rule In General The Rule: Evidence seized in violation of 4A must be excluded from evidence in courts Evolution of the Rule Weeks v. US (1914) (493) Maj: Exclusionary rule applies to federal courts Rationales: Deterrence and Judicial Integrity Wolf v. Colorado (1949) (493) Maj: 14A does not require exclusion in State courts. Rationales: Not constitutionally reqd, Federalism, State Experimentation Mapp v. Ohio (1961) (496) Maj: 4A requires Exclusionary Rule Rationales: Necessary corollary of 4A, Judicial Integrity U.S. v. Leon (1984) (567) Maj: 4A does not require the Rule; question is whether application of the Rule would deter 4A violations, and whether costs > benefits Reasons For W/o rule, no deterrence of violations, so 4A would have no meaning Protects good as well as bad people Claim that rule has increased crime is irrational hyperbole Government should not profit from illegality Judicial Integrity Reasons Against Allows criminal to go free when cop made bad guess about P/C or R/S Noted increase in crime Judicial Integrity, by letting criminals go free For good of populace that guilty be convicted & incarcerated Overcompensation: should just reduce sentences by % Monetary damages would be more effective Evidence Seized Illegally but Constitutionally Violations of State Law Main Rule: Evidence seized in violation of state law but not 4A does not require exclusion under Mapp Applications U.S. v. Appelquist (8th 1998) (504) Maj: Not illegal to avoid suppression motion in state court by dropping state law charges and allow federal prosecution Exceptions U.S. v. Wanless (9th 1989) (505) Cop did not follow state guidelines in performing inventory search of car Maj: Evidence excluded, b/c fed law on inventory searches requires they be conducted in accordance with state or local procedures. Violations of State Ethical Standards McDade Amendment Makes federal attorneys subject to state laws and rules in state where he practices U.S. v. Lowery (11th 1999): McDade Amendment does not require exclusion for prosecutors violating such state laws and rules Violations of Federal Law Main Rule: Evidence seized in violation of non-constitutional federal does not require exclusion under Mapp Note: Congress has sometimes expressly provided for exclusion; so Courts tend not to imply it when it is not express Applications U.S. v. Schoenheit (8th 1988) (506) Search made at 10:30 pm, in violation of Fed. R. Crim. P. 41 Maj: The evidence was admissible. Rule: Exclusion not required for violation of Rule 41 unless (1) search would not otherwise have occurred or (2) search would not have been so abrasive if Rule had been followed or (3) there was evidence of an intentional and deliberate disregard of Rule 41 Procedural Issues at Suppression Hearings Procedures for Return of Property and Motions to Suppress Defendants can move for return of evidence on claim of illegal seizure Defendants can also move for suppression of evidence if evidence is contraband, someone elses property, or not returnable Judges tend to decide on suppression motions Challenging a Warranted Search Main Rule: IF  moves to suppress evidence seized by warranted search, THEN judge must determine whether warrant was justifiably issued only on basis of evidence magistrate had when deciding whether to issue the warrant. Challenge to Truthfulness of Warrant Application Rule (Franks v. Delaware (1978) (507))  may obtain a hearing to determine truthfulness of statements made in a warrant application ONLY IF  alleges deliberate falsehood or reckless disregard for truth by affiant (third party s truthfulness can be of only indirect relevance)  specifies the portion of warrant claimed as false  provides statement of reasons for his belief, which should include witness statements or explanation for absence thereof uncontested part of warrant is insufficient to support finding of P/C Rationale: Only if all of the above can be met does importance of police good faith outweigh the drain on resources from such a hearing Applications Scienter Requirement U.S. v. Johns (9th 1978) (508) Maj: Hearing granted b/c  provided affidavits from 2 experts stating that officer s statement that he had detected smell of meth coming from  s home was not possibly true based on manner in which meth was stored U.S. v. Mueller (5th 1990) (508 Maj: Hearing denied b/c  s expert affidavit said only that officer s statement that he had smelled meth was unlikely to be true Challenging a Warrantless Search Main Rule: IF  moves to suppress evidence seized w/o warrant, THEN gov t must prove by preponderance that an exception to warrant req was satisfied Suppression Hearings Limited Government Privilege as to Confidentiality of Informants Rule: At suppression hearing, govt has privilege to protect identity of informants, UNLESS judge determines informants ID is necessary to decide officers believability Rules of Evidence at Suppression Hearing Rule: At suppression hearing, ordinary rules of evidence not applicable, except rules of privilege See U.S. v. Matlock) (U.S. 1974) (509)) Sequestering Police Officers at Suppression Hearing U.S. v. Brewer (9th 1991) (510) Maj: Rev d lower court s rejection of  s motion to sequester cop scheduled to testify after another cop at a suppression hearing. F.R.Ev. 615 requires judge to sequester witnesses on motion of one of parties. Use of Suppression Testimony at Trial No Use of  s Suppression Testimony on Question of Guilt/Innocence Rule:  s testimony on issue of  standing at a suppression hearing cannot be used on question of guilt or innocence at trial See U.S. v. Simmons (1968) (510) Notes Rule likely extends to all 4A questions at suppression hearings Permissible Use of  s Suppression Testimony for Impeachment Rule IF  testifies at trial in contradiction to what he said at suppression hearing THEN  s suppression testimony can be used to impeach him See U.S. v. Beltran-Gutierrez (9th 1994) (510) Permissible Use of  Witness Suppression Testimony on Guilt/Innocence Rule IF  calls witness to testify at suppression hearing, THEN witness testimony can be used against him at trial See U.S. v. Boruff (5th 1989) (511) Appellate Review Main Rule Government can appeal from suppression order ONLY IF  has not been put in jeopardy w/in meaning of Double Jeopardy Clause Appeal not made for purpose of delay Suppressed evidence is substantial proof of fact material to proceedings Standing Old Approach - Jones v. U.S. (1960) (512) A person has standing to challenge the legality of a search/seizure IF Search produced contraband that person charged w/ possessing at time of search, OR Person legitimately on the premises where search occurred Target Approach  Rejected in Rakas Modern Approach - Rakas v. Illinois (1978) (512) Main Rule IF a person has standing to challenge the legality of a search/seizure, THEN the person had a REOP in the location or object of the search/seizure Rationale: 4A rights are personal, so 4A applies only where 4A rights have been violated Note: Katz question is whether there was a search at all (conceptually prior); Rakas question is whether  has standing to object to search = whether it violated his 4A rights Applications Rakas. Cops stopped car in which s were passengers, found incriminating evidence Maj (Rehn): No standing, b/c s had neither property nor possessory interest in car or items seized Dissent (Whi): Maj s rule means open season on cars, bad faith from cops U.S. v. Salvucci (1980) (517) Maj: Mere possession of an item not enough to prove REOP in item Rawlings v. Kentucky (1980) (517)  convicted of drug crimes. Drugs seized in purse of woman also on premises. Maj:  had no right to object to search, b/c no REOP in it U.S. v. Payner (1980) (518) IRS agents stole briefcase of agent of bank when he visited U.S. IRS got evidence from it. Used the evidence against . Maj: Supervisory power doesn t authorize federal court to exclude evidence on grounds not permitted by Rakas and Rawlings. No right to object. Dis(Mshl): Exclusion necessary to protect judicial integrity from agents bad faith Minnesota v. Carter (1998) (518) Recall facts from  Arrests in the Home section. Maj (Rehn): s had no REOP in premises, so no standing to object to search of it. Conc (Ken): All social guests have REOPs; not true with business guests Dis (Gins: Guests should always share in hosts REOP, and Majs ruling will encourage unlawful intrusions of homes Limitations on & Exceptions to Exclusion Evidence Requirement Main Rule IF exclusionary rule applies, THEN evidence obtained subsequent to 4A violation Applications Ker v. Illinois (1886) / Frisbie v. Collins (1952) (529) Maj: No barrier to trial when  only illegally/unconstitutionally arrested Fruit of the Poisonous Tree (FPT) Main Rule IF evidence is excludible, THEN cops 4A violation proximately caused the seizure of the evidence Factors to Consider Towards Breaking the Causal Chain Giving of Miranda Warnings Temporal proximity of illegal action and seizure of evidence Presence of intervening circumstances, such as act of free will Purpose and flagrancy of official misconduct Illegal action not even a but-for cause of evidence seizure (Hudson) Interest protected by (violated) conl guarantee not served by suppression (Harris) BURDEN: Government Has Burden of Proving No Proximate Causation Exceptions Payton Rule Violations (interest not served) Knock-and-Announce Rule Violations (not even but-for cause) Applications Wong Sun (1963) (in 530) Toy arrested illegally. Arrest yielded Toy s confession. Confession led to evidence against , who was arrested. But  released & returned days later to confess. Maj: Evidence was FPT, couldn t be admitted. But evidence of confession not FPT, b/c not proximately caused by cops illegal actions. Brown v. Illinois (1975) (530)  illegally arrested. Taken to station, given Miranda warnings, confessed twice, both 90 min & seven hours after arrest. Maj: Both confessions excludible. 1st is FPT of illegal arrest. 2nd is FPT of 1st Taylor v. Alabama (1982) (533)  arrested illegally. Taken to station, given Miranda warnings. Finger-printed, Mirandized again, questioned, put in lineup, told prints found at crime scene. Confessed after visiting w/ girlfriend & friend. 6 hours btw arrest & confession. Maj: Confession excluded, b/c FPT of arrest. Few hours more, voluntary confession = no difference Rawlings v. Kentucky (1980) (534)  illegally detained in house while cops went for search warrant. Mirandized, detained for 45 min, confessed in spontaneous reaction to discovery of evidence. Maj (Rehn): Confession not FPT, given congenial atmosphere, voluntary confession. Relevance of Consent  U.S. v. Hernandez (2002) (544)  bus passenger had bag seized. Officers felt drugs, asked for & got consent. Maj: Evidence excluded b/c FPT. Consent didn t outweigh lack of intervening circumstances & temporal proximity. Exception for Violations of Payton Rule Rule: Payton violation not sufficient cause for purposes of exclusion Applications NY v. Harris (1990) (535) Payton violation,  arrested & confesses at station after Mirandized & waiver Maj (Whi): Payton protects physical integrity of home, not suspects from statements made outside home. Dis (Mshl): Gives incentive to violate Payton. But see Beltran (1st 1990) (535) Like Harris, but cops see cocaine in plain view.  confesses at station. Maj: Whether confession FPT depends on whether it resulted from fact of illegal arrest, or fact of illegal seizure of cocaine Exception for Violations of Knock-and-Announce Rule Rule: K&A Rule violation not sufficient cause for purposes of exclusion Applications Hudson v. Michigan (2006) (536) Cops violate K&A rule, seize evidence. Maj (Sca): No exclusion, b/c violation not but-for cause of seizure, rules interests (protecting home) not served by exclusion, & costs > benefits Special Case: Witness Testimony After Illegal Arrest/Search Rule IF evidence obtained from witness after illegal action requires exclusion, THEN there is a very close and direct link btw illegality & witness testimony Factors to Consider Degree of free will exercised by witness Role of illegality in obtaining testimony Time elapsed btw illegal action, decision to cooperate, & testimony at trial Purpose & flagrancy of officials misconduct Rationale: Witness willingness to testify Cost to society of lost testimony Applications U.S. Ceccolini (1978) (544) Cop illegally searched envelope, learned from witness nearby that it was  s. Maj (Rehn): Link btw testimony & illegality not strong enough for exclusion Independent Source Main Rule IF exclusionary rule applies, THEN illegally discovered evidence not discovered later through source/actions untainted by The initial illegality (some courts) any illegality at all Applications Clean Warrant Application - Murray v. U.S. (1988) (545) Cops perform illegal search prior to getting a warrant, but warrant never mentioned evidence obtained through the illegal search. Maj (Sca): Evidence admissible, b/c of independent source Dis (Mshl): Maj incentivizes avoidance of warrant-getting Mixed Warrant Application U.S. v. Markling (7th 1993) (551) Rule IF evidence obtained from warrant justified partly by illegally seized evidence, THEN evidence excludible ONLY IF non-illegally seized evidence justifying warrant did not rise to level of P/C The Legal Independent Source Requirement U.S. v. Johnson Maj (Posner): Cops cant claim as independent source evidence that was illegally seized from someone besides the . Makes no sense, too easy. Inevitable Discovery (Hypothetical Independent Source) Main Rule IF evidence is excludible, THEN illegally obtained evidence would not inevitably have been discovered legally, OR (some courts) cops weren t actively pursuing inevitably discoverable evidence by independent, legal means at time of illegal search BURDEN: Government Must Prove Inevitable Discovery by Preponderance See Nix v. Williams (1984) (553) Applications Nix v. Williams (1984) (553) Christian burial case. Statements illegally obtained in violation of 6th. Maj (Bur): Evidence not excluded, b/c search party would have discovered body Dis (Mshl): Too hypothetical, would require proof by C&C evidence Hypothetical Inventory Search (Circuit Split) OK U.S. v. Andrade (9th 1986) (554) Cops seized  s bag, searched illegally, found drugs. Routine inventory search would have been done. Maj: Drugs not exluded, b/c inventory search would have found drugs NOT OK  U.S. v. $659,558.00 (DCC 1992) (555) Maj: Inevitability of inventory search would eviscerate 4A warrant reqt Inevitability of Getting a Warrant (Circuit Split) NOT OK U.S. v. Brown (7th 1995) (556) Maj (Easterbrook): P/C to get warrant not enough for inevitability OK U.S. v. Goins (7th 2006) (556) Maj: Inevitability of seeking and getting warrant means no exclusion. Would Have, NOT Could Have See also U.S. v. Feldhacker (8th 1988) (556) U.S. v. Allen (4th 1998) (557) Cop illegally searched bag in bus sweep & found drugs. Argued that, if she hadnt done that, shed have called to get dog to sniff. Maj: No inevitable discovery, b/c too speculative Active Pursuit Requirement (Some Courts) U.S. v. Khoury (11th 1990) (557) Maj: No inevitable discovery via inventory search b/c latter hadnt yet started Use of Illegally Seized Evidence Outside Criminal Trial Main Rule: Exclusionary rule not applied outside criminal trial Rationale: Risk of evidence exclusion from govts case-in-chief at trial sufficient deterrent Applications Grand Jury Proceedings  U.S. v. Calandra (1974) (558)  subp d by GJ convened to investigate . Asked about illegally obtained documents Maj: Exclusionary doesn t apply, b/c marginal deterrence & high costs to GJ s Dis (Brennan): This violates judicial integrity by tainting w/ unconl practices NOTE: NY requires GJ indictments be based on legally obtained evidence. Exception for Forfeiture Proceedings Rule: Exclusionary rule applies to forfeiture proceedings not involving contraband Applications One 1958 Plymouth Sedan v. Pennsylvania (1965) (563) Maj: Exclusionary rule applies, b/c if not, govt would be unjustly enriched Use of Illegally Obtained Evidence for Impeachment Purposes ALWAYS: Direct Examination Rule: Impeachment of  on direct w/ illegally seized evidence is permissible Applications Walder v. U.S (1954) (564) Prosecutors used illegally seized evidence in prior case to impeach  s direct testimony Maj: Impeachment proper, b/c  had  opened the door to it by contradicting his prior testimony; also, alternate rule would make exclusionary rule excuse for perjury SOMETIMES: Cross Examination Rule: Impeachment of  on cross w/ illegally seized evidence is permissible ONLY IF questions put to   are plainly within the scope of the direct Applications U.S. v. Havens (1980) (564) On cross, prosecutors impeached  with evidence obtained from the illegal search Maj (Whi): Impeachment proper, b/c w/in scope; no con l difference w/ direct Diss (Brennan): Maj s rule will discourage  taking stand NEVER: Defense Witnesses Rule: Impeachment of  witnesses w/ illegally seized evidence not permissible Applications James v. Illinois (U.S. 1990) Prosecution impeached  witness w/ illegally obtained statement. Maj (Bren): Impeachment improper, b/c fear of impeachment would discourage  s from calling witnesses Dis (Ken):  witnesses are bigger perjury risk than s. Allow illegally obtained evidence to impeach them only where direct conflict btw evidence & testimony Good Faith Reasonable Reliance on an Invalid Warrant Main Rule IF cops preparing warrant did so in good faith, AND cops executing the warrant did so in objectively reasonable belief in its validity, THEN evidence illegally seized as result is not excluded Rationale: Rule is about deterring cops, not judges Exception: No Second Chances Rule: No good faith exception for 4A violation a court has previously ruled as a violation (See U.S. v. Buck (2nd 1987) (588) Notes Three Types of Errors Post-Leon Mistakes that do not violate 4A (e.g., mistakes of fact) Mistakes that violate 4A, but do so reasonably & in good faith (e.g., Leon) Mistakes that violate 4A, but unreasonably, in violation of clear law Teaching Function Problem 4A doctrine will freeze where App Ct ducks question of warrant acceptability and finds search sustained based on Good Faith. Fails to provide guidance (Calebresi in Cancelmo). Applications U.S. v. Leon (1984) (567) Maj (Whi): Non-exclusion is not new 4A wrong; not personal right of wronged  Dis (Bren): ~P/C under Gates ! reasonable reliance not possible Dis (Stvn): There can t be reasonable reliance on an unreasonable warrant. U.S. v. Carpenter (6th 2004) (580) Search warrant based on allegation of mj growing in field connected by road to s home Maj: Warrant invalid b/c no P/C, but some nexus btw home & mj meant reliance on warrant objectively reasonable U.S. v. Hove (9th 1988) (580) Maj: Search warrant invalid & NO reasonable reliance b/c warrant failed to provide any nexus btw home & illegal activity Overbroad Warrants U.S. v. Dahlman (10th 1993) (581) Warrant authorized search of lots. Cops searched cabin on lot. Maj: Warrant not particular enough for 4A, but enough for reas reliance U.S. v. Fuccillo (1st 1987) (581) Warrant authorized search for stolen womens clothing at warehouse. Cops searched entire premises, including mens clothing Maj: Warrant not particular enough for 4A OR reasonable reliance Groh v. Ramirez (2004) (581) Warrant completely failed to describe items to be seized Maj (Stvn): Warrant so clearly invalid that no reasonable reliance possible Officer Misrepresentation U.S. v. Johnson (8th 1996) (582) Cop claimed anonymous informant reliable by checking he has not given false information in the past Maj: No bad faith, b/c what cop wrote was true U.S. v. Vigeant (1st 1999) (582) Cop failed to mention CI s criminal record, facts supporting  s acting legally Maj: Bad faith, exclusion, b/c of omissions Magistrate FAIL McCommon v. Mississippi (1985) (585) Magistrate said he automatically issued search warrants on sheriffs requests Dis (Bren): Court shouldnt have denied review bad behavior U.S. v. Breckenridge (5th1986) (585) Magistrates warrant didnt describe items to be seized, b/c didnt read app Maj: No reasonable reliance possible, b/c magistrate was rubber stamp U.S. v. Decker (8th 1992) (585) Maj: FILL IN U.S. v. Lucas (2006) (585) No good faith exception, b/c warrant issued by executive, not judge Reasonable Reliance and Illegal Warrantless Searches Rationale: Exclusionary Rule application requires deterrence Statutes: Main Rule IF Statute subsequently declared unconstitutional under 4A NOT result of legislatures abandoning its responsibility to enact constitutional laws, AND Reasonable cop could have believed that statute was unconstitutional, THEN evidence seized in reliance on statute not excludible Applications Illinois v. Krull (1987) (589) Cops relied on statute for warrantless search later declared unconstitutional Maj (Blmn): No exclusion of seized evidence, b/c conditions satisfied Dis (OC): Legislature is political, this gives them a 12 year grace period for 4A violations; they are deterred by exclusionary rule Negligent Errors Negligent Errors by Judicial Clerks Main Rule IF cops execute search/seizure relying on negligent error by judicial personnel, THEN evidence seized in reliance on error not excludible Applications Arizona v. Evans (1995) (590) Cops found mj after arresting  pursuant to arrest warrant erroneously listed in computer database Maj (Rehn): Evidence not excludible, b/c no deterrence of judiciary Conc (O C): No exception if computer records so faulty that police cannot rely in good faith Negligent Errors by Officers other than the Arresting Officer Main Rule IF cops execute search/seizure relying on negligent error by other cops, THEN evidence seized in reliance on error not excludible Applications Herring v. U.S. (2009) Cop did SITA, relying on statement there was arrest warrant for  by cop at station in adjacent county, based on negligent failure to update database. Maj (Rob): No exclusion, b/c cop s mistake insufficiently flagrant Dis (Gin): There is deterrence value here  deterring liberty wrongful deprivation when mistake targets an innocent person Notes 5th Cir has applied good faith exception where negligent mistake is even the arresting officers (see U.S. v. Williams (5th 1980) (593)) Alternatives to Exclusion Options Damage Remedies: Torts, Bivens, 1983 Govt civil liability for illegal police behavior Damage Multipliers / Punitive Damages Entitle small damage claims to attorney fees Relaxed procedural limitations for 4A injunctive relief Admin channels for efficient claims processing. Criminal Prosecutions Internal Discipline (IA) Notes Problem: this allows state to budget for 4A violations as cost of doing business. AS: not clear that there are any effective alternativesNeed mixed system. 4. SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT 5A Text & Elements: Text No personshall be compelled in any criminal case to be a witness against himself Required Elements CTSI Compulsion Testimony Self Incrimination Possible Rationales Protecting Innocent: protect innocent  from convicting self through bad testimony. Con: Court has disclaimed this rationale; No proof of protection, juries unlikely to give  benefit of doubt re: silence where other evidence against her. Cruel Trilemma: (1) Self-accusation, (2) Perjury, (3) Contempt Con: This problem exists for any testifying witness; only supports privilege at trial. Deter Perjury: prefer silence to false testimony Con:  will lie anyway if thinks it will be successful; there is still prevalent perjury Unreliability of Coerced Statements Con: privilege unnecessary where there is corroborating evidence Preference for Accusatorial, not Inquisitorial System Con: This is merely a conclusory restatement of the privilege. Deter Improper Police Practices e.g., Torture Con: Torture is unacceptable regardless of privilege, and protected by Due Process. Fair State-Individual Balance: forcing good cause for govt intrusion, govt to shoulder burden Con: 4A already protects against disturbance; privilege may not be best instrument to determine this balance; also, we compel s to provide DNA samples Preservation of Official Morality Con: only applies to trial context. Privacy Con: Inconsistent with other areas where private testimony required. First Amendment: protection from govt snooping and oppression of beliefs Con: should only apply to speech, religion, and association. (C) Requirement of Compulsion Main Rule  s 5AP is violated !  s testimony compelled Applications Contempt Power Main Rule  testifies under threat of contempt !  s testimony compelled Other State-Imposed Sanctions Substantial Economic Sanctions Main Rule: IF  testifies/waives 5AP under threat of substantial economic sanction, THEN  s testimony compelled Applications Lefkowitz v. Turley (1973) (614) State public contracts req d cancellation upon refusal to testify under 5AP Maj (Whi): Waiver under this threat not voluntary. Nb: not a criminal proceeding  may assert 5A rights in any kind of proceeding, if argued that testimony may be used in criminal proceeding. Threat of Disbarment Main Rule IF testifies/waives 5AP under threat of substantial economic sanction, THEN  s testimony compelled See Spevack v. Klein (1967) (616) NOT COMPULSION  Conditional State Benefits Main Rule IF benefit to  conditioned on 5A waiver, THEN  not compelled Applications Ohio Parole Auth. v. Woodward (1998) Parole board hearing offering opportunity to voluntarily testify for clemency. Maj (Rehn): Interview not compulsion, b/c voluntary, & benefit to him U.S. v. Cruz (2nd 1998) (616)  s allowed to get under mandatory minimum if tell gov t everything Maj: No compulsion, b/c that requires  loss or reduction from status quo Noting the Failure to Testify Main Rule IF either judge or prosecutor adversely comments to jury on  s choice not to testify, THEN  compelled Exceptions When   opens the door Civil cases Rationale: Cannot punish  for invocation of his constitutional right Applications See Griffin v. California (1965) (625) Judge Obligations  Request for Instruction Against Adverse Inference Rule: IF  asks judge to instruct against adverse inference from  s not testifying THEN judge must give instruction See Carter v. Kentucky (1981) (626)  Request for No Adverse Inference Instruction Rule: Judge not obligated not to give adverse inference instruction See Lakeside v. Oregon (1978) (626) Adverse Inferences at Sentencing Also Not OK Mitchell v. US (1999) (627) Sentencing court referenced  s failure to testify at hearing in deciding. Maj (Ken): Courts cannot draw adverse inferences at sentencing Dis (Sca): force in Mitchell and Griffin not compulsion; threat of adverse inference is natural; also, sentencing not part of  criminal case under 5AP Exception for   Opening the Door Main Rule IF   opens the door to comment from prosecutor on  s not testifying, THEN prosecutor may comment on  s not testifying Applications U.S. v. Robinson (1988) (626)  counsel made closing argument that  had not been permitted to tell his side of the story. Prosecutor pointed out  had had opportunity to testify. Maj: Prosecutor s comment proper Exception for Civil Cases: Prosecutors & courts may draw adverse inferences See Baxter v. Palmigiano (1976) (629) Rationale: Stakes not as high Adverse Inferences against Non-Parties (e.g., witnesses): Gov t Witnesses: Courts split  Witnesses: Not Permitted (fear of spillover effect against )  Exculpatory No Doctrine & 1001  Brogan v. U.S. (1998) (631)  lied to federal agents when asked whether he d committed a crime. 1001 Violation Maj (Sca): No compulsion, b/c he could have stayed silent (ridicules  cruel trilemma ) (T) Requirement of Testimony Main Rule  s 5AP is violated !  compelled to give testimony !  asked for a response requiring him to communicate an express or implied assertion of fact or belief Notes Scalia/Thomas Hubbell Concurrence: 5AP witness would be better read to cover compelled provision of any evidence against oneself, not just testimony (see also Boyd) Applications Physical Evidence Not Testimony Compelled Blood Samples Schmerber v. California (1966) (636) Toxicology report based on blood sample taken against  s will Maj (Bren): Blood test report not testimony South Dakota v. Neville (1983) (642) Maj: Jury can draw adverse inferences from refusal to allow blood sample Utterances During Line Ups  U.S. v. Wade (1967) (637)  arrested, put in line up, asked to say word said by robber during bank robbery Maj: Utterance not testimony, but exhibition of his physical characteristics Handwriting Gilbert v. California (1967) (638) Voiceprints U.S. v. Dionisio (1973) (638) Slurred Speech - PA v. Muniz (1990) (638) DUI stop, Court assumed compulsion,  has slurred speech Maj (Bren): Slurred speech is admissible b/c not testimonial - not an assertion Signatures  Doe v. U.S. (1988) (641)  compelled to sign form releasing bank records Maj: Signature not itself testimony, b/c no truth value But see Muniz DUI stop,  asked date of 6th birthday, said he didn t know it Maj: Statement inadmissible, b/c compelled & testimonial, b/c truth value Estelle v. Smith (1981) (641) Psychiatrist interviewed , later gave testimony not only on basis not only of his physical manifestations & demeanor, but also statements Maj (Bur): Dr.s testimony is fruit of compelled testimony Documents Main Rule The compulsory production of documents is testimonial IFF The Act of Production (AOP) of the documents is testimonial, OR The government compelled  to create the documents originally EXCEPTION (some courts): Private Documents Basic Applications Business Documents - Fisher v. U.S. (1976) (643) IRS subpoena s tax records (from attorney & not ) Hold: No 5AP violation b/c docs not compelled by gov t & AOP not testimonial Private Documents Circuit Split No Exception - In re Grand Jury (9th 1985) (645) Exception - U.S. v. Stone (1992) (645) AOP Main Rule AOP is Testimonial IF AOP admits existence of documents AOP admits possession of documents AOP admits that documents are ones described in subpoena (authentication) Applications U.S. v. Hubbell (2000) (648) Govt drew inferences from admission of existence of docs in  s AOP to build case against him Maj (Stvn):  s AOP was testimonial U.S. v. Doe (1984) (644) Maj (Pow): AOP of docs testimonial b/c would have req d owner to admit that docs (1) existed, (2) were in his possession, and (3) were authentic In re Doe (2nd 1983) (646)  doctor suspected of illegally giving out drugs subp d for personal records; sheer # of records meant unlikely all patients were seen legally Maj: AOP of docs testimonial b/c existence implied admission of criminality In re Sealed Case (DCC 1987) (646)  subp d for records of companies involved in crimes; possession admitted involvement Maj: AOP of docs testimonial b/c possession admitted criminality (S) Requirement of Personal Self-Incrimination Main Rule IF  s 5AP is violated THEN  is a person, AND  s testimony, if compelled, would incriminate (or give rise to an inference incriminating) himself Applications  Person Requirement  Corporations and Other Collective Entities ENTITLED to 5AP: Sole Proprietorships U.S. v. Doe (1984) (635): Maj: 5AP applies to sole proprietorships b/c not distinguishable from person NOT ENTITLED to 5AP Partnerships Bellis v. U.S. (1974) (635) Maj: Agents of a partnership not entitled to 5AP w/r/t partnership liability Corporations - Braswell (1988) (635) Maj: Corporation wholly owned & operated by one person has no 5AP Trusts Labor Unions Self Requirement Service Provider-Client Relationships Fisher v. U.S. (1976) (633) IRS subpoenaed docs relating to investigation of  from  s attorney. Maj (Whi):  s 5AP not violated by compulsion against someone else. Agent-Company Relationships Oral Testimony: Curcio Rule Rule: Corporate agents entitled to 5AP w/r/t oral testimony Rationale: Person owns his thoughts See Curcio v. U.S. (1957) (654) Production of Documents: Collective Entity Rule Rule: Agent not entitled to 5AP w/r/t company AOP of records, but is w/r/t personal AOP Rationale Docs held in representative capacity, owned by corp; assumption of risk Braswell (635) Maj (Rehn): Fact that  agent made AOP cannot be used against him, but fact that corporation made AOP can Dis (Ken): Agent should be granted use immunity (I) Requirement of Self-Incrimination Main Rule IF  s 5A Privilege (5AP) is violated, THEN  s compelled testimony Incriminates, or is used to draw conclusions incriminating, , AND Is admitted as evidence against  During a criminal case Applications  Incrimination Requirement Standard for Incrimination Invoker is  IF person exercising privilege is  ! always valid invocation Invoker is Witness Main Rule IF person exercising privilege is a witness, THEN exercise is invalid ONLY IF it is perfectly clear. from consideration of all circumstances, w/o compelling witness to divulge further testimony, that the answers cannot possibly have a tendency to incriminate Applications Hiibel (2004) (661) Maj (Ken): Requiring  to give his name presented no reasonable danger of incrimination Invocation Though  Denies Wrongdoing  Ohio v. Reiner (2001) (663) Witness babysitter took 5th, then w/ immunity claimed she was innocent Maj: Invocation valid, b/c 5AP protects innocent people too Immunity The Logic of Immunity (IFF = If and only if) (P1) (5AP) Right not to have testimony compelled from you IFF testimony can be used against you (P2) Right not to have testimony compelled from you IFF no obligation to give testimony (C1)(P3) Therefore, no obligation to give testimony IFF testimony can be used against you (P4) No obligation to give testimony IFF right to remain silent (C2)(P5) Therefore, right to remain silent IFF testimony can be used against you (C3)(P6) Therefore, testimony cannot be used against you IFF no right to remain silent (P7) IF grant of immunity THEN testimony cannot be used against you (C4) Therefore, IF grant of immunity THEN no right to remain silent Transactional & Use Immunity Transactional Immunity Def: Immunity w/r/t all subject-matter of persons testimony, w/o/r/t source of evidence that might be used to incriminate person about subject-matter Use-Fruits Immunity Def ( 6002): Immunity w/r/t testimony & all conclusions based upon it Main Rule  Kastigar (1972) (665) Immunity under /5AP ! Use-Fruits Immunity BURDEN: On gov t to prove evidence it proposes to use against  derived from legitimate source wholly independent of compelled testimony Exceptions: Perjury Applications U.S. v. North (DCC 1990) (666)  s immunized testimony viewed on television by gov t witnesses who later testified against him Maj: Use of witnesses violated 5AP, b/c gov t s evidence shaped by compelled testimony, even though gov t not at fault Independent Source  U.S. v. Gallo (2nd 1988) Both  s immunized GJ testimony & other info used to get wiretap that was used to incriminate  Maj: No 5AP violation, b/c legit evidence enough to get wiretap Impeachment U.S. v. Apfelbaum (1980) (667) Rule: Immunized testimony, & fruits thereof, cannot be used to impeach in subsequent case against witness Perjury Exception Rule: Immunized witness has no perjury right, & can be prosecuted Subsequent Statements Rule: Court cannot compel testimony from  b/c of prior immunization Special Case: Act of Production (AOP) of Documents Main Rule AOP by  violates 5AP ONLY IF AOP is Compelled AOP is Testimonial AOP incriminates, or is used to draw conclusions incriminating, , (foregone conclusion doctrine) Gov t cannot prove it does not have substantial independent evidence of documents (1) existence, (2) possession, OR (3) authenticity (depending on which are incriminating of ) Applications U.S. v. Hubbell (2000) (648) Gov t used  s compelled AOP to build case against him; didn t already have what it got from him; was part of  puzzle it built Maj (Stvn):  s 5AP violated, b/c gov t can t use testimonial aspects of AOP to incriminate him  Criminal Case Requirement Allen v. Illinois (1986) (609) State court relied on  s compelled statements to psychiatrists to determine whether to commit him for treatment under Sexually Dangerous Persons Act. Maj (Rehn): Proceedings under act not criminal, therefore no 5AP violation Dis (Stvn): Treatment goal not enough to make 5AP inapplicable. Shadow crim law. Mitchell Sentencing hearing counts as part of a  criminal case  Admitted Against  Requirement  Chavez v. Martinez (2003) (612)  compulsorily gave incriminating statements, but never admitted at criminal trial b/c never tried. Sued under 1983, 5AP. Plu (Thom):  s 5AP not violated, b/c statements never admitted in criminal case Conc(Sou): Worried that contrary rule would create too much liability. Dis (Ken): Plu holding diminishes force of 5AP Note: Doesnt Lefkowitz v. Turley contradict Chavez? Waiver Sufficient for Waiver Testimony on Direct (see U.S. v. Hearst (9th 1977) (668)) Main Rule: Witness waives privilege as to any subject matter w/in scope of direct Cross may compel testimony only to extent necessary to fairly test statements made upon direct and inferences that might be drawn therefrom Failure to Invoke (see Garner v. U.S. (1976) (671)) Main Rule: Failure to invoke privilege w/r/t possibly incriminating questions is a waiver of privilege Insufficient for Waiver Guilty Pleas (see Mitchell v. U.S. (1999) (669)) Main Rule: No waiver (at sentencing) w/r/t crimes allocuted to Exceptions to the 5AP (as if) Production of Person in Response to a Court Order Main Rule IF  has assumed care over person (subject to court s conditions?), THEN  has no 5AP w/r/t production of the person Applications Baltimore City Dept. of Social Services v. Bouknight (1990) (656)  violated court conditions w/r/t custody of her son. Ordered to produce him. But suspicion he might be dead meant failure to produce incriminating. Maj (OC): No 5AP, b/c production reqd as part of noncriminal regime; Braswell Dis (Mshl): This is not like Braswell no artificial entity here this is just bad Required Records Doctrine Main Rule IF Govt requires the keeping of records For a legitimate administrative/public purpose By individuals or groups not inherently suspect of criminal activities THEN  has no 5AP w/r/t production of such records Rationale: State s legitimate functions would be impaired by application of 5AP Applications Shapiro v. U.S. (1948) (657): Gov t req d RR s to keep business records under Price Control Act Maj (Vin): Compelled production doesn t violate 5AP Marchetti v. U.S. (1968) (657)  convicted of failing to keep records of illegal gambling activities Maj: Records not customarily kept, purpose not public enough, group too selective Haynes v. U.S. (1968) (658) Maj: Reqd Records doctrine doesnt apply to law requiring registration of sawed-off shotguns, when possession of them otherwise illegal California v. Byers (1971) (658) CA statute reqd auto accident drivers to stop and leave id/registration Maj (Bur): (1) Stat OK where scheme is regulatory, not criminal; use-fruits immunity not required; (2) Giving name is never testimonial. Harlan Conc: Name giving may, at times, be testimonial. Bouknight Maj (OC): Somehow OC thought reqd records exception applied here 5. CONFESSIONS Confessions and Due Process Main Rule IF  makes confesses involuntarily on totality of the circumstances, THEN  s DP right is violated & DP prohibits use of  s confession against him at trial Notes Old Bram Rule: Confession involuntary if obtained on basis of direct or implied promises or exertion of any improper influences Posner in Rutledge: Involuntary ! State makes rational decisionmaking impossible Involuntariness  Totality of the Circumstances Main Rule: Involuntariness Requires Coercive Police Activity Buttressed by  Characteristics Coercive Police Activity Severe Brutality See Brown v. Mississippi (use of torture Permission/denial of food, sleep, other amenities Sustained pressure/interrogation See Spano v. New York (questioning into the night) Permission/denial of family, friends, or counsel See Spano (denial of request to see counsel) Deception and False Promises Green v. Scully (2nd 1988) (681) Maj: Interrogation OK where scare tactics, false claims of evidence, false promises re: psychological treatment. U.S. v. Baldwin (7th 1995) (684) Maj: Honest promises of leniency OK, false promises not False Documentary Evidence Florida v. Cayward (Fla.App. 1989) (683) Maj: Confession involuntary where cops used fabricated DNA report to extract confession Threats of Physical Violence, Other Inducements Arizona v. Fulminante (1991) (684)  confesses to prison cellmate/gov t CI in exchange for protection Maj (Whi): Credible threats of violence sufficient for involuntariness  s Characteristics Educational Background Mental Deficiency Colorado v. Connelly (1986) (685)  confesses to murder, later says he did b/c voices told him to. Maj (Rehn): Not involuntary; no police coercion at all Experience with Criminal Proceedings Awareness of rights  to counsel, to remain silent Confessions & the Fifth Amendment: Miranda Main Rule IF , While under custodial interrogation, AND EITHER Without adequate warning to  of his rights, OR Without  s valid waiver of his rights after adequate warning, Provides testimony That gov t uses against  at trial THEN  s 5AP-Miranda right is violated Notes Miranda protects s under custodial interrogation for any crime, felony or misdemeanor  Berkemer v. McCarty (1984) (755) Miranda, Dickerson, & Chavez Miranda v. Arizona (1966) (689) Rationales 5AP protects outside of criminal proceedings, protects in all settings where freedom of action is curtailed Inherent compulsion in custodial setting, need safeguards to protect free choice. Prophylactic rule to combat difficulty of judicial review of interrogation Dissents Harlan: No basis in 5A law-5AP does not forbid all pressure; right to counsel is 6A (for crim proceedings)-lawyers will only be an obstacle to truthfinding. White: Confessions have high reliability and are important for prosecution. Dickerson v. U.S. (2000) (708) Response to 18 USC 3501, attempting to replace Miranda with totality of circumstances t Maj (Rehn): Miranda was a constitutional rule (Miranda has applied to state cases), and Congress cannot supercede Courts interpretation of constitution. Exceptions are just exceptionsnot proof that Miranda is just prophylactic. (Nb: does not overrule exceptions). Any alternatives to Miranda must be at least as protective. Dis (Sca): Miranda not a conl rule Court has already said so; it is prophylactic; meaning not binding on Congress or states; no stare decisis case b/c now cases saying Miranda not a conl rule need to be reconsidered Chavez v. Martinez (2003) (714) Maj: Miranda is a trial rule only; 5AP/Miranda violated only if confession admitted against  during criminal case (C) Requirement of Custody Main Rule (Objective Test  is in custody ! a reasonable person in  s position would not feel free to leave Considerations (Brown (8th 1993) (744))  told questioning voluntary, that he s free to leave or request to leave, or that he s not under arrest  s freedom of movement  initiated contact or voluntarily acquiesced to questioning Cops use of strong-arm tactics or deceit Atmosphere police dominated Suspect placed under arrest following questions. Applications Arrest is Custody  Orozco v. Texas (1969) (739) Cops arrested , questioned him Maj: If arrest, then custody Interrogation at  s Home  Beckwith v. U.S. (1976) (739) IRS agents came to  s house, invited in, asked questions about tax fraud Maj: No custody, b/c atmosphere not coercive Officer Intent not the Focus  Stansbury v. California (1994) (739) Cop questioned  he didn t think was perp, got incriminating responses Maj: Cop s belief not dispositive; test is objective Personal Characteristics Irrelevant  Yarborough v. Alvarado (2004) (740) Young  taken to station by parents, confessed Maj (Ken): Youth irrelevant to determination Dis (Brey): Age is part of objective consideration Prisoners Rule: Prisoners  custody when prison official s conduct would cause a reasonable person to believe freedom of movement is further diminished Garcia v. Singletary (11th 1994) (742)  inmate set fire to cell, taken out of cell & asked why he did it Maj: Removal was no additional incursion on freedom Interrogation at Police Station: Mathiason (1977) (742)  came to station unaccompanied of free will, told  not under arrest, left station w/o hindrance after confession. Maj: No custody Beheler (1983) (743)  agreed to go w/ cops to station for questioning. Told not under arrest. Maj: No custody Probation Officer Meetings - Murphy (1984) (743) Maj: No Custody where Probation officer questions  in office about crimes Terry Stops: Not custodial (Berkemer 1984) (C) Requirement of Interrogation Main Rule  is interrogated IFF Cops (not undercovers) expressly question , OR Cops utter words or do actions they should know are reasonably likely to elicit an incriminating response from  Exceptions: The Booking Exception Notes AS: too difficult to apply; no good rule established Applications Cops Comments Not Directed at   Rhode Island v. Innis (1980) (745) Cops talk to each other in paddywaggon re: danger of missing gun near school Maj (Stwt): No interrogation, b/c no reason to believe  would confess Dis (Mshl): Police conduct is intended or likely to produce a response; this satisfies Dis (Stvn): Statement normally understood by average listener as calling for response. Confession to Another - Arizona v. Mauro (1987) (749) Conversation w/ wife in presence of cop w/ tape recorder.  confessed to her. Maj (Pow): No interrogation, b/c hope of incrimination not intent to Dis (Stvn): Was highly probably that  would incriminate himself Threats to Others  U.S. v. Calisto (3rd 1988) (750) Cops found drugs in room w/ men s & women s clothes, suggest arrest  s daughter] Maj: Cops might expect a response, but not an inculpatory response. Confronting  with Incriminating Evidence  U.S. v. Edwards (1981) (751) Cops play confession tape of co-conspirator to  Maj: Interrogation Statements Made to Others Statements to undercover in jail cell not interrogation (Perkins 1990) Indirect But Provocative of Comment  U.S. v. Soto (6th 1992) (752) Cop asked why  had drugs when he had wife & daughter. Maj: Interrogation; though not direct, designed to elicit incriminating response Booking Exception Main Rule IF questions to  are For securing the data needed to complete booking or pretrial services, AND Not designed to elicit incriminatory admissions THEN questions do not count as  interrogation of  Applications Muniz (1990) (752) Maj: Q s re: name, address, height, weight not interrogation Carmona (2nd 1989) (753) Maj: Asking name is never interrogation (C) Miranda Warnings Main Rule Miranda requires that  be warned re: Right to remain silent All statements made can be used in prosecution against  Right to attorney representation if desired Right to provision of attorney for indigent s Required Degree of Completeness & Accuracy Main Rule: Miranda requires that warnings to  be sufficient Applications California v. Prysock (1981) (756)  not informed explicitly of right to have attorney appointed before questioning, but was informed of right to have attorney appointed, period Maj: No violation, b/c Miranda requires no talismanic incantation Duckworth v. Egan (1989) (756) Maj (Rehn): Printed form that didn t read exactly like Miranda opinion OK Dis (Mshl): Form confusing U.S. v. Connell (9th 1989) (757)  informed that lawyer  may be appointed for him if indigent Maj: Warning implied discretion, not sufficient (C) Waiver of Miranda Rights W-W: Warnings-Waiver Main Rule IF  validly waives Miranda rights after warning, THEN  s waiver is Voluntary Knowing, AND Intelligent BURDEN: On Government Voluntary Main Rule (see Colorado v. Connelly) IF  s waiver NOT product of coercive police behavior, THEN waiver is voluntary Applications Moran v. Burbine (1986) (748)  denied lawyer, lawyer denied access Product of free and deliberate choice rather than intimidation, coercion or deception. Full awareness of rights abandoned and consequences of abandonment Knowing Main Rule IF  s waiver made w/ full awareness of nature of rights being abandoned, THEN waiver is knowing Applications Gov t Must Prove  Tague v. Louisiana (1980) (758) Cop gave warnings, could not remember whether asked  if he understood them or otherwise tried to determine if  capable of understanding Maj: Waiver not knowing, b/c gov t s burden to prove Formal Waiver Not Req d  U.S. v. Frankson (1996) (759) Cop warned, asked  if he understood,  said yes, then answered many q s Maj: Knowing, b/c said  yes, and gave lots of responses Low IQ   Smith v. Zant (11th 1989)  had 65 IQ, under extreme stress, given warnings once, very quickly Maj: Gov t did not prove knowing waiver Language Barrier  U.S. v. Garibay (9th 1998) (760)  said he understood warnings, but had no real English skills & low IQ Maj: Not knowing waiver; Knowing requires that  actually understand Intelligent Main Rule IF  s waiver made w/ full awareness of relevant consequences of waiver, THEN waiver is intelligent Applications Possible Subjects of Questioning  Colorado v. Spring (1987) (762)  not be told of all possible subjects of questioning Maj (Pow): Intelligent;  need not be aware of all possible subjects Legal Reality  Oregon v. Elstad (1985) (762)  unaware that pre-Miranda confession could not be used against him Maj (O C): Intelligent; requiring this not practically or con lly necessary Efforts of Counsel to Reach  Moran v. Burbine (1986) (763)  not told that sister had retained lawyer who had been denied access Maj (O C): Intelligent; not affected by circumstances  occurring outside  s presence; contrary holding would treat similarly situated s differently; no requirement to inform  of counsel s efforts to reach him Dis (Stvn): Requirement would further Miranda, not be difficult But see People v. Griggs (Ill. 1992), Conn. v. Stoddard (1988), rejecting Moran W-I-I-W: Warnings, Invocation, Initiation, Waiver  Invokes the Right to SILENCE Main Rule (Mosley) IF  invokes his right to silence after receiving Miranda warnings, AND  still under custodial interrogation THEN  s subsequent waiver is valid IFF  s invocation is  scrupulously honored by the police , AND  s waiver is Voluntary Knowing, AND Intelligent BURDEN: On Government Notes If no custodial interrogation, Miranda not applicable to confession Invocation of the Right to Silence Main Rule IF  genuinely invokes his right to silence, THEN invocation is unequivocal and unambiguous Notes Cops not required to stop & clarify  s intent re invocation Applications U.S. v. Banks (7th 1996) (769)  pushed Miranda waiver out of face, said  I don t got nothing to say. Maj: Equivocal invocation, so Mosley inapplicable Scrupulously Honored Requirement Factors to Consider (most important) Cops allow a cooling off period Cops immediately stop questioning upon invocation Different cop during subsequent interrogation Cops administer fresh Miranda warnings # of times cops attempt to get  to speak (not as important) Cops restrict subsequent interrogation to different crime Applications Michigan v. Mosley (1975) (768) New warnings given two hours later, new detective questioned, new crime unrelated to original questions Maj (Stwt): Waiver valid, invocation scrupulously honored  Invokes 5AP Right to COUNSEL Main Rule IF  invokes his right to counsel after receiving Miranda warnings, AND  still under custodial interrogation ./0IJTU^_`y z {  ' ; A B zujbWWWWhrhr5:>*hrhr6h)YFh)YF5:>* h)YF5hrh?u5:>*OJQJh?uhr5:>*OJQJhrhr5:>*OJQJ hr6hr hr5h?u5:>*OJQJhr5:>*OJQJh-NhV5>* hj5>*h-Nhn5>* h-Nhj h-NhTh-Nhj5>*"/0IJ`z {  B t e f t u gdd & Fgd<8^8gd?u & Fgd< & Fgd<h^hgd?u & Fgd<gdg| s t d e f s t u ( ) A B D xsls]]U]hJ1hJ15hJ1hJ15:>*OJQJ hJ156 hJ15h-Nh9xH* h-Nh9xhJ1h?u5:>*OJQJh-N5:>*OJQJh-Nh9x5:>*OJQJhrhr5:>*OJQJhrh)YF5:>*h)YFh)YF5:>* h)YF6h)YFhr5:>*h)YFhrhr5:>*hr hr6u ) B w ]^$%+,Nf8^8gd^gd?uh^hgd?u & Fgd<^gd?u & Fgd< & Fgd< & Fgd<D F V ` v w \]^MQ$%:*󺫣|pdXSOhBY hBY5h?u5:>*OJQJhBY5:>*OJQJh{!5:>*OJQJhh%5:>*OJQJ h%6h%h%h%5:>*OJQJh%h%5h%h?u5:>*OJQJh?uhJ15:>*OJQJhJ1hJ15:>*OJQJ hJ15hJ1h-N5:>*OJQJ h-Nh9xhJ1hJ1hJ1H**+,MNef,4@APaɺ{vqvm^ZmVZQZ^ZVm hb6hjIIhbhjIIhjII5:>*OJQJhI hjII5 hI5h-N5:>*OJQJh5:>*OJQJh-Nh9x5:>*OJQJh?u5:>*OJQJh5:>*OJQJhh%5:>*OJQJh%h%h%5:>*OJQJ h%5h%h?u5:>*OJQJh?uhBY5:>*OJQJApTV<RR & Fgd<^gdD & Fgd<^gdD & Fgd<^gdD & Fgd< & Fgd< & Fgd<(*$<Nnpɽ~oh`QLGLCh1 h5 h15h1h5:>*OJQJh1h5 hdhhIhD5:>*OJQJhDhI5:>*OJQJhDhIhI5:>*OJQJ hI5hIhDhD5:>*OJQJ hD5hD5:>*OJQJhIhb5:>*OJQJhbhbhb5:>*OJQJ hb5hbhI5:>*OJQJTVp:<PRPRop+,89Y۲ң֔Ì֔|xixhIhd5:>*OJQJhIhd5:>*OJQJhdhdhd5hdhd5:>*OJQJhdh5:>*OJQJhh5h1 h5hDhD5:>*OJQJh hd5hh5:>*OJQJ h15 h156h1h156(p,9tl  & Fgd<^gdD & Fgd< & Fgd<8^8gdD & Fgd< & Fgd< & Fgd< & Fgd<^gdDYlst.4^jl 1zuqe^VR^hdhdhd5 hDhDh5:>*OJQJhD hd5 h156 h15hhh5:>*OJQJ h5h1h5:>*OJQJh1h5 hI5 hdhhDhD5:>*OJQJhdhI5:>*OJQJhIhIH*hIhI5:>*OJQJhI hI6 #$%345GJ]cd½{{m{{_mWShDhDh15h?uh?u:>*OJQJh1h?u:>*OJQJ h1h?uh1h?u5:>*OJQJ h?u6h?uhDh?u5h?u5:>*OJQJh?uh-N5:>*OJQJ h15hDhD5:>*OJQJ hdhD hD6hg{hD6hDhg{hD5hg{ hD5 h?u5$%45dL | ~ "" & Fgd<h^hgd{! & Fgd<gdg|^gd?u & Fgd<^gd?u & Fgd<^gdD & Fgd< & Fgd<J L z | ~ !" 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Fgd<(a1abRbTbbbcc,c.cHcJcdd ddddddddddddde*eLe\ee:R:T:V:d:f:h:::ĿίrnhjhEUmHnHujhqUmHnHtHuhqU hdK6hEhdK5hdKhdKhr)>*hr)hdK>*hdKh7>* hE5 h75 h75 hdK5 h5h7h7>* h^56h^h^6 h^5h^h^>*h^)ddddxeeeR:T:d::v;x;;;;;;<<< ^ gddK^gdq & Fgd< h^`hgdEgd9^ & Fgd< h^`hgddK^gdr) & Fgd<THEN  s subsequent waiver is valid IFF EITHER  initiates subsequent contact w/ cops in which  confesses, OR Police initiate contact in which  confesses AND  s counsel present, AND  s waiver is Voluntary Knowing, AND Intelligent BURDEN: On Government Notes If no custodial interrogation, Miranda not applicable to confession Invocation of the 5AP Right to Counsel Main Rule IF  genuinely invokes his right to counsel, THEN invocation is unequivocal and unambiguous Notes Cops not required to stop & clarify  s intent re invocation Applications Davis v. U.S. (1994) (769)  said  maybe I should talk to a lawyer. Cops ask clarifying questions,  says no lawyer, new warning given. Maj: No invocation, b/c must be unequivocal Conc (Sou): Cops should have to stop, ask, & clarify Smith v. Illinois (1984)  said  Uh, yeah, I d like that re counsel. Later was ambiguous about it. Maj: Invoked right; cops can t use subsequent ambiguity to undermine Initiation The Law: Bradshaw Plurality Approach  Totality of the Circumstances Factors to Consider Reasonable to believe  willing & wants to talk about investigation Officer informs  that he is not obligated to talk Applications Oregon v. Bradshaw (1983) (772)  invokes right to counsel, then asks  what s going to happen to me now during transport to jail Plu (Rehn):  initiated, b/c reasonable to think he wanted to talk Bradshaw Dissent Approach - Strict Main Rule IF  initiates subsequent contact w/ cops, THEN  expresses willingness to discuss specific subject of investigation Special Issues Edwards Right Not Offense Specific Main Rule: Cops can t initiate questioning re other crimes after invocation of Miranda-Edwards right to counsel See Arizona v. Roberson Invocation Only of 6A Right at Arraignment Main Rule: IF  invokes right to counsel at arraignment THEN  invokes 6A right to counsel, not 5AP-Miranda right Consequence: Cops can initiate questioning re other crimes after invocation of 6A right to counsel Stevens: You can still explicitly invoke 5AP-Miranda right at arraignment in advance of questioning Scalia: You can t invoke Miranda rights in advance Duration of Protection Rule: Edwards protection continues after  consults w/ attorney, and goes away only during time  s counsel present See Minnick v. Mississippi (1990) (781) Exceptions to Miranda Impeachment Use Permissible Miranda-Defective Testimony Main Rule Miranda-defective testimony can be used to impeach  at trial Applications Harris v. U.S. (1971) (715) On cross,  asked about Miranda-defective statements that contradicted his direct testimony Maj (Bur): Impeachment proper, b/c Miranda is prophylactic, not constitutional (overruled); & cost of exclusion for impeachment > benefits, b/c sufficient deterrence flows from suppression for case-in-chief Pre-Arrest, Pre-Miranda Silence Main Rule Pre-arrest silence can be used to impeach  at trial Applications Jenkins v. Anderson (1980) (718)  waits 2 wks to turn himself in, argues self-defense at trial; impeached on fact that he waited so long Maj (Pow): Impeachment proper, b/c no DP problem where no governmental action induced  to be silent Post-Arrest, Pre-Miranda Silence See Fletcher v. Weir (1982) (718) Not Permissible Post-Miranda Warning Silence: Main Rule Silence after Miranda warnings cannot be used to impeach  at trial Applications Doyle v. Ohio (1976) (717)  Mirandized at time of arrest, chose to remain silent. Asked on cross why he had not given exculpatory story he gave on direct earlier Maj: Impeachment improper under DP, Miranda s right to be silent DP-Defective Confessions (not a genuine Miranda exception) Main Rule Involuntary confessions cannot be used to impeach  at trial See Mincey v. Arizona (1978) (716) Fruits of Miranda Violations Leads to Witnesses Main Rule IF gov t obtains witness testimony through use of  s Miranda-defective confession, THEN witness testimony admissible against  Applications Michigan v. Tucker (1974) (719) Miranda-defective confession leads cops to witness against  Maj: Witness testimony admissible, b/c right not con l, & testimony reliable Subsequent Mirandized Confessions by  (Elstad-Seibert) (719) (Probably The Law) Kennedy Seibert Approach - Focus on Cops IF gov t gets Mirandized confession by using  s Miranda-defective confession, THEN Mirandized confession inadmissible against  ONLY IF Cops obtained Miranda-defective confession in bad faith, AND No  curative measures taken ensure reasonable person would understand import and effect of subsequent Miranda warning and Miranda waiver Seibert Plurality Approach  Focus on  IF gov t gets Mirandized confession by using  s Miranda-defective confession, THEN Mirandized confession admissible against  ONLY IF reasonable person in  s place could have seen subsequent questioning as a  new and distinct experience Considerations Location of interrogations  same or different Continuity of police personnel Degree to which cop s questions treated second round as continuous Time in between Completeness & detail of questions and answers in prior confession Overlap in content of two confessions Notification of inadmissibility of prior confession before second confession Seibert Dissent Approach  Focus on Voluntariness IF gov t gets Mirandized confession by using  s Miranda-defective confession, THEN Mirandized confession inadmissible against  ONLY IF  s Mirandized confession involuntary under DP Physical Evidence: Main Rule IF gov t obtains physical evidence through use of  s Miranda-defective confession, THEN physical evidence admissible against  Applications U.S. v. Patane (2004) (730) Unwarned statements produce gun. Plu (Tho): Evidence fruits are admissible, b/c (1) not themselves testimonial, and (2) Miranda-defective statements not genuinely coerced, & 5AP only requires exclusion of coerced testimony & fruits therefrom Conc (Ken): Miranda violation is only admission of testimony at trial Dis (Sou): Maj reates incentive to violate Miranda; 5AP extends protection to use and derivative use, and Miranda violation violates 5AP Notes Fruits of DP-Defective Confessions: Also inadmissible (see Elstad) Emergency/Public Safety Main Rule IF testimony is Miranda-defective b/c of  overriding considerations of public safety , THEN testimony admissible against  Applications New York v. Quarles (1984) (735) Cop tackles  in grocery store, asks where he stashed the gun. Confession admitted against  at trial. Maj (Rehn): Public safety (need to secure gun in public place) justifies Miranda failure. Confession obtained is admissible. U.S. v. Mobley (4th 1994) (1994) Cop asked  at door to his home where suspected gun, after protective sweep didn t find it. Maj: No public safety exception, b/c  in home, and protective sweep meant no immediate danger. U.S. v. Carillo (9th 1994) Cop asked drug suspect pre-SITA whether he had any needles Maj:  s statement admissible, b/c of public safety  officer often got stuck w/ needles, headaches and skin irritations, when frisking drug suspects Confessions & the Sixth Amendment Main Rule IF  makes statements After adversarial proceedings have commenced against , In the absence of counsel, Upon deliberate elicitation by gov t agents,AND Without a valid waiver of his rights (*though Jackson req seen as prophylactic), THEN  s 6A rights violated & statements cannot be admitted against  at trial After Indictment Requirement (When 6A Right  Attaches ) Main Rule  s 6A rights violated ! Adversarial proceedings have commenced against  Adversarial Proceedings: Include Formal charge Preliminary hearing Indictment Information Arraignment Applications Massiah v. U.S. (1964) (783)  arrested, arraigned, released on bail; Cops send co-conspirator to elicit & tape confession Maj (Stwt): 6A right to counsel violated where cops seek confession after  has been formally charged w/o counsel Dis (Whi): Confession was voluntarily given in non-coercive setting. Brewer v. Williams (1977) (787)  arraigned; cops give  Christian burial speech during transport, despite promises that they would not question  Maj (Stwt): 6A right attached, so confession not admissible against  U.S. v. Gouviea (1984) (793) s placed into administrative detention prior to indictment; confessed Maj (Rehn): Attachment only upon adversarial proceedings Dis (Thom): Administrative detention part of adversarial process Rothgery v. Gillespie County (2008) (S 39)  arraigned but prosecutor & counsel not present Maj (Sou): 6A attaches at arraignment, not important that prosecutor not there Conc (Sca): 6A attaches at arraignment, but 6A requires presence of counsel only when necessary to guarantee  effective assistance at trial But See NYS Law: Arrest warrant, although ex parte not adversarial, triggers 6A right. Note: The Rejected Escobedo Approach Escobedo v. Illinois (1964) (786)  arrested but not yet indicted; Requests for lawyer denied, retained atty not permitted access; confessed Maj: 6A violated where  is  focus of investigation that has reached  critical stage. Dis:6A right to counsel only protects  prosecutions, not  investigations. BUT Moran v. Burbine (1986) (786) Maj (O C): 6A protection does not begin until initiation of criminal proceedings. Requirement of Deliberate Elicitation by Government Agents Main Rule IF deliberate elicitation by government agents, THEN government agents took some action, beyond listening, deliberately designed to elicit incriminating remarks BURDEN: On  Applications Deliberate Elicitation Cops Speak to  Brewer v. Williams (1977) (787)  arraigned; cops give  Christian burial speech during transport, despite promises that they would not question  Maj (Stwt): Deliberate elicitation Fellers v. U.S. (2004) (795)  arrested & questioned in home after indictment; made inculpatory statements Maj (O C): 6A violated, b/c cops told  they d come to talk about case Government Use of Informants Unknown to  U.S .v. Henry (1980)(789) Gov t puts paid informant into jail cell, instructs not to question  about crime, but conversations had Maj (Bur): 6A violation, b/c informant acted as more than a  passive listener Dis (Rehn): Violation/exclusion should be based on coercive interference with right to counsel. Move away from Massiah (where  in own car, speaking freely). Kuhlman v. Wilson (1986) (798)  in close proximity to informant, but  offers confession sua sponte Maj ((Pow): No deliberate elicitation Government use of  s Accomplices (knowing exploitation standard) Maine v. Moulton (1985) (800)  initiated meeting w/ co-, who was paid informant; cops wanted him to investigate as yet uncharged crimes; they spoke about charged & uncharged ones; Statements about charged ones were used at trial Maj (Bren): Deliberate elicitation b/c cops should have known better Rationale: Distrust of informants Whether a Government Agent Entrepreneurial Informants - U.S. v. Watson (DCC 1990) (799) Past jail informant informed on , but no evidence DEA encouraged him Maj: Informant not state agent where deliberately elicits then talks to cops Informants on Retainer  Circuit Split Waiver of 6A Right to Counsel Main Rule IF  validly waived his 6A right to counsel, THEN EITHER   received warning & waived VKI, OR  received warning & invoked right, EITHER  initiates subsequent contact w/ cops in which  confesses, OR Police initiate contact in which  confesses AND  s counsel present, AND  waived VKI Voluntary  Talking to an Undercover Invalidates V (Patterson dicta) Rule: No waiver if post-indictment confession is to gov t undercover Knowing  Which Warnings Sufficient for K Miranda Warnings Sufficient for K (Patterson) Rule: Miranda warnings sufficient to satisfy knowledge re Warning about Indictment Not Required for K(Chadwick 8th 1993) Rule: Knowledge does not require  informed about whether indicted Intelligent  Notification of Counsel s Efforts Required for I (Patterson dicta) Rule: Intelligence requires  notified of counsel s efforts to contact him Invocation of the 6A Right to Counsel  Jackson Sense Rule: Jackson protection requires explicit, unequivocal  invocation See Wilcher v. Hargett (804)  Attachment Sense Rule: 6A doesn t require  invocation, b/c it attaches automatically upon commencement of adjudicatory proceedings Special Issues Jackson Right IS Offense Specific Main Rule: Cops can initiate questioning re other crimes after invocation of 6A-Jackson right to counsel See McNeil v. Wisconsin (1991) (805) Rationale: Broad construction is unsound policy-wise, and 6A protects on indictment for a specific crime Exclusionary Rule & 6A (see Michigan v. Harvey (1990) (810))  True Violations (Statement Genuinely Involuntary) Statements in Case-in-Chief: Excluded Statements for Impeachment: Excluded FPT: Excluded Massiah Violations (Questioner is CI, so waiver impossible, but statement voluntary) Statements in Case-in-Chief: Unclear Statements for Impeachment: Unclear FPT: Unclear Brewer Violations (Questioner is Cop, statement voluntary, but waiver not VKI) Statements in Case-in-Chief: Unclear Statements for Impeachment: Unclear FPT: Unclear Jackson Violations (Questioner is Cop,  invokes, cops initiate w/o  s counsel, voluntary) Statements in Case-in-Chief: Unclear or Admissible Statements for Impeachment: Admissible FPT: Probably Admissible 5. THE GRAND JURY In general Text of 5A  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. Dual Functions Shield: Protects citizens from unjust prosecution by state Sword: Enforces law by investigating incidents or offenses that grand jurors think suspicious Not Incorporated Hurtado v. California (1884) (895)  Right to grand jury not incorporated in DPC Grand Jury Relation to Judge & Prosecutor Judge s Relation to GJ Supervisory Power Main Rule IF court may exercise its supervisory power to encroach on GJ, THEN there is a  clear basis in fact and law for doing so Rationale: GJ is a constitutionally-based, independent entity Applications U.S. v. Chanen (9th 1977) (908) Gov t presented case three times to GJ; didn t ask for indictment first time, second time made procedural errors; got indictment third time by reading transcripts from first time. Dist Ct quashed indictment. Maj: No fundamental unfairness, therefore reversed See also U.S. v. Williams (substantially exculpatory evidence case) Prosecutor s Relation to GJ Legal Advisor Presenter of Evidence Capacity to Negate Indictment (refuse to sign indictment, or nolle prosequi) Powers of Grand Jury s Investigation Scope of Inquiry: Rational Basis Test (NOT P/C) Branzburg v. Hayes (1972) (915) Subpoenaed witness is NYT reporter who covers Black Panthers; said testifying would damage his relationship w/ Party Maj: Subpoena justified in spite of hardship to witness, and even if GJ s need not significant U.S. v. Dionisio (1973) (917) Witness cattle call to provide voice recordings to match gov t evidence Maj: Subpoena justified b/c reasonable Dis (Mshl): Stigma attached to GJ subpoena; protect with reasonableness test (?) Privileges 5AP Attorney-Client Defense Counsel Called to Testify About Client Fees Rule: Defense counsel can resist GJ subpoenas to testify about fee-arrangements only if disclosure would disclose motive his client had for seeking counsel Journalists: Branzberg v. Hayes (1972) (915) Conc (Pow): Some 1A protections might be afforded news reporters. BUT Judith Miller Case (DCC) No 1A constitutional privilege of protection for journalists Leaves open question of common law privilege. Shield Laws States may write shield laws for journalists Issue: Material for prosecutor investigation vs. defense. Secret Service Agents: DC Cir rules no privilege w/r/t presidential ongoings Quashing a Subpoena (FRCrimP 17(c)) Main Rule IF compliance w/ subpoena would be  unreasonable or  oppressive , THEN subpoena may be quashed  Unreasonable Compliance (Enterprises 1974) (919) Main Rule IF compliance w/ subpoena would be  unreasonable, THEN there is no reasonable possibility that the category of materials gov t seeks will produce information relevant to general subject of investigation. Notes Close to impossible to meet. Evidence Before the Grand Jury Admissible Evidence Main Rule: Constitution places no limitation on evidence presentable to GJ Applications Hearsay Evidence - Costello v. US (1956) (911)  prosecuted for tax evasion govt uses hearsay only to prove net worth Maj (Black): GJ not bound to use trial-admissible evidence Illegally Obtained Evidence - U.S. v. Calandra (1974) (913) Maj: Exclusionary rule doesn t apply to GJ proceedings But see NY State law requiring GJ indictment based on admissible evidence. Exculpatory Evidence Main Rule Prosecutor need not present substantially exculpatory evidence to GJ Application U.S. v. Williams (1992) (913) 10th Cir had imposed rule using supervisory power requiring presentation of all substantially exculpatory evidence to GJ Maj (Sca): Supervisory power doesn t extend this far, and rule is incompatible w/ GJ function as accusatory, not adjudicatory Dis (Stvn): Won t countenance all forms of prosecutorial misconduct Additional Rights of Witnesses & Counsel Witnesses Warnings No Statutory/Constitutional Right: Witnesses have no right to be warned about possible consequences of testifying US Attorney s Manual: Contains various warnings that must be provided, but grants no private right of action (919) Counsel Presence in or outside Jury Room Grand jury witnesses have no con l right to have counsel present in or out of jury room Notes AS: Defense counsel will often want to be outside jury room, to figure out who GJ witnesses are and thus the government s theory of the case Secrecy and the Grand Jury Rationales Protect reputation of innocents that GJ decides not to indict Prevent target flight or witness tampering Encourage witnesses to testify truthfully Secrecy Requirements of FRCrP 6(e) Proceedings must be recorded (6(e)(1)) Consequence: can establish prior inconsistent testimony of witnesses Required not to disclose MATTERS BEFORE THE GJ (6(e)(2)(B)) Grand juror Interpreter Court reporter Recording device operator Transcriber Attorney for government Exceptions to Secrecy Requirement Disclosure May be Made To Government Attorneys for use in Performing Their Duty (6(e)(3)(A)(i)) U.S. v. Sells Engineering (1983) (908) USAO Civ Div attorneys got automatic disclosure Maj: Not automatic Rule: Civ Div attorneys must (1) make strong showing of particularized need for disclosure, (2) demonstrate need greater than need for secrecy in GJ proceeding, and (3) structure requests for disclosure to obtain only what is needed U.S. v. John Doe (1987) (908) DOJ Antitrust attorneys conducted GJ investigation made continued use of GJ materials during civil phase of dispute Maj (Stvn): Use not prohibited, b/c no necessary disclosure in civil phase Government Personnel Assisting Government Attorneys (6(e)(3)(A)(ii)) Certain Bank Employees (6(e)(3)(A)(iii)) Disclosure May be Made By Government Attorneys to Another Grand Jury (6(e)(3)(C)) Government Attorneys for Various Intelligence & Other Purposes (6(e)(3)(D)) Court, On Various Conditions (6(e)(3)(E)) GJ Witnesses May Disclose Main Rule GJ witnesses not prohibited to disclose GJ matters of own testimony Applications Butterworth v. Smith (1990) (907) Maj: Fla Stat prohibiting GJ witness from disclosing own testimony after GJ term ended violates 1A National Security Letters: Doe v. Gonzales (DConn 2005) rules NSL prohibition on disclosure 1A violation. Jencks Act:  entitled to prior statements at close of witnesses direct testimony at trial ( 3500 material ) Prosecutorial Misconduct Quashing Indictment for Prosecutorial Misconduct Main Rule: IF indictment quashed for prosecutorial misconduct, THEN misconduct amounts to overbearing the will of the grand jury See U.S. v. McKenzie (5th 1982) (909 n.20) Harmless Error Rule (FRCP 52): Rule: Any error, defect, irregularity that does not affect substantial rights must be disregarded. Applications US v. Mechanik (1986): Dismissal of Indictment is appropriate if established that violation substantially influenced the grand jury s decision to indict, or if there is grave doubt as to whether it had such effect. Bank of Nova Scotia (1988): Fed Ct may not use supervisory power to dismiss an indictment where error was harmless. Structural Error: Discrimination and the Grand Jury Discriminatory Selection of Grand Jurors Main Rule: EPC prohibits racial or ethnic discrimination in selection of grand jurors Applications Castaneda v. Partida (906) In county where GJ convened, majority of population Mexican-American Maj: Statistics can be used to make out prima facie discrimination case Discriminatory Selection of Grand Jury Forepersons Main Rule Doesn t require reversal only if (1) foreperson s functions ministerial, or (2) selection of foreperson isn t simultaneously selection of a grand juror Applications Hobby v. U.S. (1984) (906) Maj: Discrimination in GJ selection doesn t require reversal b/c ministerial Campbell v. Louisiana (1998) Maj: Selection of foreperson was from venire, so was selection of grand juror 6. THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (EAC) The Strickland Test IF  s right to EAC violated, THEN  Counsel s Performance was Ineffective AND  Counsel s Ineffective Performance Prejudiced  Scope of the EAC Right EAC Right Applies To Trial Sentencing (see Strickland v. Washington (1984) (1297)) Guilty Plea State (see Hill v. Lockhart (1985) (1338) Retained Counsel (see Cuyler v. Sullivan (1980) (1306)) First Appeal of Right (see Evitts v. Lucey (1985) (1306)) Main Rule IF  has a right to appeal a conviction, THEN  has EAC right in making and executing the appeal Rationale If  has statutory right to first appeal, then  has constitutional right to counsel at such an appeal, and if  has constitutional right to counsel at a proceeding,  has right to EAC at that proceeding EAC Right DOES NOT Apply to Subsequent Appeals & Collateral Attack Rationale  has no constitutional right to counsel at subsequent appeals or collateral attack, and if  has no constitutional right to counsel at a proceeding,  has no right to EAC there Performance Prong Main Rule IF  counsel s performance was ineffective, THEN counsel s performance, on totality of the circumstances, fell below an objective standard of reasonableness BURDEN: On  (strong presumption of effectiveness,  must show specific acts) Notes Marshall Strickland Dissent: Too vague a standard; different types of competence, often depending on amount of time, money Factors to Consider For Effective Performance (EP) Reasonable strategy Sufficient investigation  counsel conferred w/  over major decisions Against Effective Performance (~EP) No strategy at all Ignorance of the law Failure to file a meaningful appeal Conflicts of interest Appeals Duty to Consult Main Rule (Flores-Ortega) IF A rational  in  s position would want to appeal, OR  reasonably demonstrated to counsel his interest in appealing THEN  counsel is ~EP unless he consults w/  about appeal (or Duty to File Main Rule (Anders) IF  counsel s failure to appeal is ~EP, THEN After conscientious examination of case,  counsel found appeal wholly frivolous, Counsel requests permission to withdraw, AND Counsel files brief referring to anything in record that arguably might support appeal Strategy Main Rule:  counsel has wide latitude in deciding how best to represent  Applications Reasonable Strategy Darden v. Wainwright (1986) (1309)  counsel at sentencing introduced no mitigation evidence, relied on  s plea for mercy Maj: EP; Various areas for mitigation would have been used against  Willis v. Newsome (11th 1985) (1312)  counsel didn t get autopsy performed on victim, to determine whether shot w/ handgun or not Maj: EP;  counsel can make state prove case BRD, w/o putting on its own; could have harmed  to have run test Jones v. Page (7th 1996) Maj: EP; App court will not second guess  counsel s judgment about witnesses Gacy v. Welborn (7th 1993) Maj: EP;  Spare him for silence argument on sentencing OK Conceding  s Guilt in Capital Prosecution - Florida v. Nixon (2004) (1318)  counsel thought  s guilt in capital case clear, decided to concede guilt at guilt phase to preserve mercy argument for sentencing (same jury) Maj (Gin): EP; No per se rule; counsel s decision reasonable Closing Arguments Main Rule Review of  counsel s closing is highly deferential, especially on habeas Applications Yarborough v. Gentry (2003)  counsel s closing focused on uncertainty, didn t make various exculpatory arguments Maj: EP; Counsel s choices are presumed reasonable, & arguments he didn t make could have backfired; Can criticize client Unreasonable Strategy U.S. v. Wolf (7th 1986) (1312)  counsel had  tactic of no objections Maj: ~EP; can t have policy of not objecting to questions Caro v. Calderon (9th 1999) Maj: Failure to notify evaluating psych of  s brain damage unreasonable where critical and not subject to rebuttal. No Strategy at All Jones v. Thigpen (5th 1986) (1313) Maj: ~EP b/c no explanation for failure to argue mental retardation as mitigation at capital sentencing;  had 41 IQ Harding v. Davis (11th 1989) (1313) Maj: ~EP b/c ailure to object to directed guilty verdict is per se unreasonable Conferral With Client Main Rule  counsel has duty to discuss potential strategies w/ , but may make decisions if  neither consents nor objects to counsel s advice See Florida v. Nixon Ignorance of the Law Kimmelman v. Morrison (1986) (1310)  counsel failed to file timely suppression motion, b/c had conducted no discovery, b/c believed gov t obligated to turn over all inculpatory evidence to  Maj (Bren): ~EP; Complete lack of preparation and legal competence Cave v. Singletary (11th 1992) (1310)  counsel during closing betrayed ignorance over felony murder rule;  on trial for murder Maj: ~EP; completely misunderstood felony murder, which counsel must Incomplete Investigation Main Rule IF  counsel s decision not to investigate reasonable, THEN reasonable professional judgment supports the decision Applications Investigation of Mitigation Evidence Wiggins v. Smith (2003) (1324)  counsel failed to investigate & present mitigation evidence in capital case Maj (O C): ~EP; Reasonable attorney would have investigated further Schriro v. Landrigan (2007) (S 65)  told counsel not to call witnesses to stand who would put on mitigating evidence; also told judge he d told counsel not to put on mitigating evidence; Counsel didn t investigate any other mitigating evidence either Maj (Thom): EP, b/c  objected to mitigating evidence, and no  VKI waiver requirement applies here Dis (Stvn): ~EP, b/c  only objected to mitigating evidence w/r/t the witnesses counsel suggested, not all mitigating evidence; no VKI waiver Investigation of  s Prior Case Files  Rompilla v. Beard (2005) Failure to investigate case files meant  counsel didn t learn mitigation evidence Maj (Sou): ~EP; Not per se rule, but  counsel knew gov t going to mention it as aggravating evidence at sentencing, so had duty to look at it Dis (Ken):  counsel had no reason to believe filed contained mitigation evidence Prejudice Prong Main Rule IF  counsel s ~EP prejudices , THEN there is a reasonable probability that, but for counsel s ~EP, result of proceeding would have been different, AND at time of review, error that is basis of ~EP would still be an error in jurisD in which it occurred BURDEN: On  (presumption that judge or jury acted according to law) Notes Marshall Strickland Dissent: It s not about outcome, it s about procedural fairness Reasonable Probability/But For Requirements Definition: Probability sufficient to undermine confidence in the outcome Rationale: It s not  more likely than not b/c outcome already tainted by ~EP Factors to Consider Strength of case against   But For Causation Strength of Case Against  Atkins v. Atty. Gen. of Alabama (11th 1991) (1335)  counsel ~EP for failing to object to inadmissible evidence, and evidence against   not overwhelming overall Maj: ~EP prejudiced  b/c reasonable probability it d have come out differently Rompilla v. Beard Maj: No prejudice from failure to look at case file, b/c of strength of evidence Motions to Suppress Rule: Prejudice if reasonable probability of success on the motion Appeals  Lozada v. Deeds (1991) (1339) Main Rule IF failure to appeal is result of  counsel s ~EP, AND Court could resolve issues in  s favor, THEN  prejudiced by ~EP Applications  counsel didn t inform  of right to appeal; lower court denied habeas petition b/c  didn t indicate what issues he d have raised on appeal and % of success Maj:  met standard for prejudice  But For Guilty Pleas - Hill v. Lockhart (1985) (1338)  counsel gave  incorrect legal advice on plea rules, and  pled Maj: No prejudice, b/c no showing he would not have pled guilty but for ~EP Appeals Main Rule (Flores-Ortega) IF reasonable probability that, but for  counsel s ~EP,  would have appealed, THEN  prejudiced  Still an Error Requirement Applications Lockhart v. Fretwell (1993) (1335)  counsel fails to object to unconstitutional aggravating factor Maj (Rehn): No prejudice, outcome determination not sufficient; result not unfair Dis (Stvn): Court not against windfalls when State is beneficiary Rationale: Prejudice requires unfairness to  from counsel s error Per Se Ineffective Assistance of Counsel (IAC) Main Rule (Cronic) Per Se IAC findable when  completely denied counsel  counsel entirely fails to subject prosecution s case to adversarial testing External circumstances make it extremely unlikely that even a competent lawyer could effectively assist  Denial of Counsel No Bar Certification  Solina v. U.S. (2nd 1983) (1342)  represented by counsel who hadn t even passed the bar & held himself out Maj: Per se IAC, b/c complete denial of  counsel under 6A Sleeping Defense Counsel  Tippins v. Walker (2nd 1996) (1342)  counsel slept every day, through testimony, despite judge admonishents Maj: Per se IAC, but only b/c  counsel s sleeping was not tactical device Counsel Present Only By Speakerphone  Wright v. Van Patten (2008) (S 80)  counsel participated at plea hearing only through speakerphone; State court said Strickland applied. Maj: Cronic not clearly applicable, so no reversal of state court Conc (Stvn): Court is right, but only because Cronic regrettably didn t address whether  presence of counsel entails  physical presence Failure to Subject Prosecution s Case to Adversarial Testing Bell v. Cone (2002) (1343)  counsel failed to adduce mitigating evidence, waived closing Maj (Rehn): No per se IAC, b/c counsel asked for mercy; this is Strickland issue Dis (Stvn): Per se IAC, b/c counsel completely failed to put on defense External Circumstances U.S. v. Cronic (1984) (1340)  counsel was appointed young real estate attorney given 25 days for pretrial prep, when gov t had taken 4 years Maj (Stvn): No per se IAC, b/c  counsel had a reasonable chance to win Per Se Unreasonable: No per se rule, usually. (cronic) Sleeping atty: May be per se unreasonable, but not always. Never passing bar exam: always unreasonable. 7. DISCOVERY Specifics of Defense Discovery FRCrP 16 IF  requests, THEN government must provide  s own statements in response to official investigation, if gov t intends to use at trial  s own written or recorded statements in gov t possession. (for organizational  s)Statements of agents legally attributable to   s prior criminal record Docs and other tangible materials that are: material to the preparation of defense (only related to gov ts case in-chief, not affirmative defenses (Armstrong)) intended for use by gov t in case-in-chief, OR obtained from/belong to  Reports of physical or mental exams that are material to defense OR intended for use in gov t s case in chief Written summary of testimony of expert witnesses  intends to call in its case-in-chief Other Possible Defense Discovery Requests Grand Jury Minutes & Transcripts (FRCrP 16(a)(3))  entitled only to Copy of own GJ testimony (16(a)(1)(A)) Production of trial witness GJ testimony after witness direct (Jencks Act) Work Product (FRCrP 16(a)(2)) NO  ENTITLEMENT Quashing a Rule 16 Request (FRCrP 16(d)(1)) Rule IF  s discovery request is  vague or overbroad THEN judge has discretion to quash request Excessive Disclosure U.S. v. McDade (EDPa 1992) (988)  counsel given access to several rooms of documents & 2400 hours of tapes Maj:  entitled to good faith effort from gov t to learn what won t be used at trial Witness Statements Jencks Act (18 USC 3500) Main Rule Gov t must provide  w/ prior statements of gov t witnesses after they testify at trial. that relate to the subject matter of the witness direct testimony Statements (Def) Written statement made by witness & signed or otherwise adopted or approved by him Stenographic, mechanical, electrical, or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement made by witness & recorded contemporaneously w/ making of statement Statement, however taken or recorded, or transcription thereof, if any, made by witness to a grand jury FRCrP 26.2 Extends Jencks Act to prior statements of  witnesses after direct trial testimony. Some States Some states require (others ban) disclosure of names and addresses of gov t witnesses Prosecutor s Duty to Disclose Prosecutor s Duty to Disclose Main Rule IF Government (cops or prosecutors) has in its possession Materially exculpatory evidence, THEN Government must disclose all such evidence to , AND Government failure to disclose such evidence requires reversal of  s conviction Materially Exculpatory Evidence (Brady-Agurs-Bagley) Materially Exculpatory Evidence  Evidence that, if disclosed to the defense, creates (or would create) a reasonable probability of a more -favorable result Evidence that, if disclosed to the defense, undermines (or would undermine) confidence in the (otherwise reasonably foreseeable, -unfavorable) outcome of the trial Notes (THESE ARE IMPORTANT) Materiality is Considered Collectively If aggregate of evidence is materially exculpatory, then government must disclose (Kyles) Standard of Appellate Review of Materiality Determination: Deferential Significance of Specific Request (Blackmun, O Connor, & Stevens in Bagley) More specific  s request for evidence, more likely evidence is material Timing of Required Disclosure (2nd Cir) Rule: Gov t must disclose materially exculpatory evidence w/ enough time for  reasonably to make use of it Brady Trumps Jencks Constitutional requirement trumps statutory requirement Materiality not about Sufficiency Evidence not immaterial simply because jury would still have had sufficient evidence to convict When in Doubt, Disclose Court in Kyles explicitly says gov t should err on side of disclosure Applications Brady v. Maryland (1963) (995)  counsel asked to see statements of  s accomplice. Prosecutor did not disclose statements in which accomplice admitted to crime Maj: Non-disclosure violated DP, requiring re-sentencing Giglio v. U.S. (1972) (995) Witness testified he hadn t gotten gov t deal; Prosecutor didn t know he had Maj: One prosecutor s failure attributable to entire gov t U.S. v. Agurs (1976) (996)  args self-defense, gov t fails to disclose victim s two prior weapons offenses Maj: Evidence not material b/c jury knew victim had knife, could have inferred danger; arrest record not requested, did not infer perjury Dis (Mshl) Maj test creates incentive for gov t to err in favor of nondisclosure; want test:  must prove significant chance that evidence developed by skilled counsel would have induced reasonable doubt in minds of enough jurors to avoid conviction U.S. v. Bagley (1985) (1000) Despite  s specific request, gov t did not disclose witness contracts with ATF for undercover work Maj (Blmn): No reversal req d, b/c not material evidence Kyles v. Whitley (1995) (1002) Gov t suppressed prior inconsistent testimony of witness tending to inculpate a different person Maj (Sou): Material, b/c evidence showed cop dishonesty, witness uncertainty Special Cases Inadmissible Evidence - Wood v. Bartholomew (1995) (1006) Gov t suppressed inadmissible polygraph evidence; 9th Cir said, if  had had it, might have been able to build a better case Maj: Not material; 9th too speculative; evidence couldn t have been directly used, and indirect case not enough Note: Not clear whether suppressed inadmissible evidence can never be materially exculpatory Impeachment Evidence Factors to Consider Importance of witness Whether witness has been impeached w/ other evidence Nature and quality of the suppressed impeachment evidence Applications U.S. v. Boyd (7th 1995) Drug gang case where corrupt AUSAs grant crazy favors to witnesses; witness perjury occurred Maj (Posner): Trial judge had determined materiality; standard is deferential, and decision found reasonable Strickler v. Greene (1999) (1011) Banks v. Dretke (2004) (1013) Gov t didn t disclose that witness had been paid for testimony, that he had instigated attempt to get evidence against , and conferred w/ prosecutor about testimony Maj (Gin): Evidence material Guilty Pleas  U.S. v. Ruiz (2002) (1015) Main Rule During guilty plea negotiations, gov t is Required to Disclose: Evidence bearing on  s factual innocence Not Required to Disclose Evidence impeaching of gov t witnesses Evidence  could use to prove affirmative defense Rationale: Too time-consuming, difficult to determine Duty to Preserve Exculpatory Evidence Main Rule IF cops violate  s DP rights by failing to preserve potentially materially exculpatory evidence, THEN cops have acted in bad faith Applications California v. Trombetta (1984) (1017) Maj (Mshl): Cops not required to preserve DUI breath samples. Arizona v. Youngblood (1988) (1017) Child molestation case, cops fail to preserve semen residue Maj (Rehn): No DP violation, b/c no bad faith; negligence at worst Dis (Blmn): where no comparable evidence available, cops must preserve evidence with potential to reveal criminal s immutable characteristics of , b/c such evidence has exculpation value Prosecutor s Duty NOT to Mislead the Court Mooney-Alcorta-Napue Main Rule IF government knowingly uses or elicits false evidence at trial, THEN  s DP rights violated Applications Mooney, Pyle  Knowing use of perjured testimony Alcorta  Knowing allowance of witness to create false impression Napue  Knowing elicitation of perjured testimony w/o attempt to correct 8. GUILTY PLEAS In General Constitutionality Guilty pleas are constitutional (Brady v. U.S.) (1970) (1033) Can t Punish the Decision to go to Trial Judge cannot give  harsher sentencing for going to trial (U.S. v. Medina-Cervantes (9th 1982) (1038) Overcharging Problem Bordenkircher v. Hayers (1978) (1042) Prosecutor threatened to charge  w/ mandatory life sentence crime if he didn t plea.  didn t, was charged, and sentenced to life. Maj: Charging left up to prosecutors & grand juries; if  had been charged w/ crime from the beginning, no problem, so why here? (AS: gripe is w/ legislature) Dis (Blmn): Unfair for charge not to be presented at beginning of bargaining Dis (Pow): Prosecutor not acting in public interest Notes Easterbrook: Imperfect markets better than none Schulhofer: Plea bargaining forces innocents to plead guilty Ashcroft Memo: Prosecutors must charge most serious, readily provable offenses Standard for  Cruel & Unusual Punishment Under 8A Solem Requirements Proportionality Gravity of the offense Comparison to other sentences imposed in the state Harmelin Gross disproportionality Rehn/Sca: No proportionality requirement in 8A Ewing Follows Harmelin Constitutional Requirements for a Valid Guilty Plea VKI & Competent Requirement Main Rule Valid Guilty Plea ! VKI & Competent Rationale: , by pleading guilty, relinquishes a constitutional right BURDEN At Plea Hearing: On trial judge (must make record) At Appeal: On government Voluntary Main Rule IF gov t did not produce plea by actual/threatened physical harm or by mental coercion, THEN plea  voluntary Factors to Consider Improper pressure likely to overbear will of an innocent person Physical harm Threats of harassment Misrepresentation Improper government promises unrelated to prosecutor s business Global Settlements/Package Deals Not Impermissible Per Se  U.S. v. Pollard (DCC 1992) (1045)  claims coerced into plea b/c wife s plea linked to his own; she was ill Maj: Coercion depends on conduct of govt; not factual circumstances Trial Judge Must Be Informed  U.S. v. Caro (9th 1996) (1046) Trial judge not told that  s plea part of package deal w/ co-s Maj: Prosecutor must inform trial judge of package deal Knowing & Intelligent Main Rule IF plea  knowing & intelligent, THEN  understood Nature of charges against him (critical elements of crime) Requirement of proof BRD of each element Penalty that can be imposed Required Nature of the Offense (Critical Elements) McCarthy v. U.S. (1043)  pled guilty; trial judge didn t ask guilty whether he understood nature of charges Maj: Guilty plea set aside b/c ~K Boykin v. Alabama (1043)  pled guilty; trial judge didn t get affirmative showing of VKI Maj: Guilty plea set aside Henderson v. Morgan (1976) (1050)  19 year old pled guilty w/o being informed intent to cause victim s death an element of second-degree murder Maj: Plea set aside;  must know critical elements Record of Counsel s Informing  Suffices  Bradshaw v. Stump (2005) (1051)  pleads to crime inconsistent w/ his testimony of events Maj: K where  testifies that attorney advised him of elements. Penalty Imposed U.S. v. Goins (4th 1995) (1051) Maj:  must have general idea of maximum, mandatory minimum sentences flowing from plea agreement; precision not necessary Precision Not Necessary  U.S. v. Andrade (2nd 1999) (1051) Maj: K doesn t require precision about Sentencing Guidelines Pleaded to Offense is a Crimes  Bousley v. U.S. (1998) (1053) Maj:  entitled to hearing on merits after to pleading to something later found not to be a crime Not Required Impeachment Evidence  U.S. v. Ruiz (2002) Maj (Brey): VKI does not require disclosure of material impeachment evidence of gov t witnesses Collateral Consequences Most courts do not require information re: other consequences (e.g., permissive/mandatory deportation, possibility of future prosecution, parole revocation of benefits, etc) Competent Main Rule (Godinez v. Moran) IF plea  competent, THEN  able to consult w/  s counsel w/ a reasonable degree of rational understanding, AND has a rational as well as factual understanding of the proceedings against him Rationale: No higher a standard than required for trial competence (Dusky) Rule for Waiver of Counsel at Plea Hearing Main Rule (Iowa v. Tovar (2004) (1054)) IF trial court informs  of Nature of charges against , Right to be counseled regarding plea, Range of allowable punishments attendant upon entry of guilty plea, THEN  waiver of right to counsel valid Additional Requirements on Plea Bargaining Faithful Following of Procedures Blackledge v. Allison (1977)(1065)  claimed he wasn t told he could mention his agreement to plead guilty in order to get reduced sentence. Judge had just read questions off form. Filed habeas petition. Maj:  had right to have claim heard, b/c process defective Rule 11 Requirements Generally Entering a plea ((a)) Conditional Pleas ((a)(2)) Considering & Accepting Guilty or Nolo Contendere Plea ((b)) Required information to  ((1)) Voluntary Requirement ((2)) Factual Basis for Plea ((3)) Plea Agreement Procedure ((c)) Withdrawing Pleas ((d)) Finality of Guilty or Nolo Contendere Plea ((e)) Admissibility ((f)) Harmless Error Standard for Reversibility ((h)) Judicial Role Power to Review (11(c)(3)) Type A & Type C Agreements Main Rule IF plea agreement is Type A or C, THEN district court may Accept or reject plea agreement, OR Defer decision until consideration of PSR Type A Agreement (def): Agreement includes dismissal of any charges Type B Agreement (def): Agreement includes a specific sentence Type B Agreements Main Rule IF plea agreement is Type B, THEN district court must Advise  of nonbinding effect of recommendations of court, AND Inform  he may not withdraw guilty plea, even if court doesn t adopt recommendations Type B Agreement (def): Agreement includes sentencing recommendations or gov t s promise not to oppose  s sentencing requests No Power to Participate in Negotiations (11(c)) Harmless Error & Plain Error in Review of Conviction on a Guilty Plea (11)(h)) Main Rule (U.S. v. Dominguez-Benitez (2004) (1071)) IF trial court s Rule 11 error not harmless (=  plain error ), THEN, absent error & on review of whole record, probability of different result is sufficient to undermine confidence in outcome of the proceeding BURDEN: On  Claims of Innocence & Factual Basis Requirement Innocence Claims Alford Pleas Main Rule (see Model Code 350.4(4), North Carolina v. Alford (1970) (1071) IF it is reasonable for person in  s position to plead guilty, THEN court may accept  s guilty plea despite  s claim of innocence Factors to Consider Factual basis for  s plea  s demonstrated desire to enter plea despite innocence claim Factual Basis Requirement (11(c)) Main Rule Valid Guilty Plea ! Factual Basis for Plea Factors to Consider  s Statements Factual assertions in indictment Information in prosecutor s file Notes Factual basis requirement doesn t apply to property forfeitures in plea agreements Finality of Guilty Pleas Plea Withdrawals Before Acceptance Rule (11(d)) Courts may allow  to withdraw plea for any reason (done liberally) After Acceptance, Before Sentence Rule (11(d)) Courts can reject plea if Rejection is under 11(c)(5) (see Type A, B, & C agreements), OR  shows  fair and just reason for withdrawal (very strict) Applications U.S. v. Hyde (1997) (1074) Court had accepted  s plea, but deferred consideration of plea agreement.  attempted to withdraw, w/o offering any  fair and just reason Maj: No withdrawal after plea acceptance w/o  fair and just reason After Sentencing Rule (11(e)) Courts cannot allow plea withdrawal after sentencing Notes Use of Evidence after Withdrawn Plea: Prohibited under F.R.Evid. 410, but prosecutors usually put Rule 410 waiver in plea agreements Breach of Bargain Breach by the Government Whether a Breach Ambiguity Construed against Gov t  Palladino Breach Must be Based on Terms of Agreement  U.S. v. Austin (8th 2001) Breach May be Inadvertent  Santobello v. NY (1971) (1076) New prosecutor on case made sentence recommendation when old one had said he wouldn t. Maj: Inadvertent breach is still breach U.S. v. Palladino (2003) (1976) Prosecutor promised not to ask for enhanced sentence on basis of certain evidence, then introduced evidence at sentencing. Maj: Breach of plea agreement U.S. v. Benchimol (1985) (1077) Prosecutor told judge at sentencing he was reluctantly not recommending higher sentence on plea agreement, but wouldn t object to judge s doing so Maj: No breach Cooperation Agreements  U.S. v. Luske (6th 2002) Prosecutor failed to move for sentence reduction, despite agreement requiring that on substantial assistance from .  had been caught smoking mj, but no terms to the contrary Maj: Breach of agreement Remedies Main Rule (Santobello) IF government breaches plea agreement, THEN court may either Permit plea to be withdrawn Order new sentencing before different judge Breach by the  Rickets v. Adamson (1987) (1079)  entered guilty plea for specific prison term, violated agreement. Maj (Whi): No double jeopardy when  sentenced pursuant to plea agreement. Appeals & Collateral Attack Conditional Guilty Pleas (11(a)(2)) Rule:  may enter a conditional plea w/ court consent & government, reserving right to have app review of an adverse determination of a pretrial motion.  who prevails on motion may withdraw plea. Burns (2nd 1982): Trial courts should consent to conditional pleas only where (1) issues can be reviewed w/o full trial AND (2) appealed issue is likely to be dispositive of case 9. TRIAL BY JURY Fundamental Right Constitutional Basis: Enshrined twice in Constitution at artIII2(3) and in 6A. Art. III, 2, Cl. 3:  [t]he trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. 6A:  In all criminal prosecutions, the Accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crim shall have been committed, which district shall have been previously ascertained by law. Rationale: Creates a buffer of ordinary people between accused and the state Incorporation  Duncan v. Louisiana (1968) (1162) Scope of the Right Rule: Right to jury trial applies to all crimes that are not petty crimes Petty Crimes Definition Bright Line Rule: If penalty > 6 months, not petty crime (Baldwin v. NY (1970) (1162)) Factors to Consider Length of prison term Seriousness of punishment otherwise Applications Joinder of Multiple Petty Offenses  Lewis v. U.S. (1996) (1162) Main Rule: Right to jury depends on sentence for particular offense charged, not possible aggregate sentence for all offenses charged Penalties Besides Incarceration Main Rule IF penalties besides imprisonment relevant to jury trial right, THEN  can show that any additional statutory penalties, in conjunction with maximum authorized incarceration period, are so severe that they clearly reflect a legislative determination that offense in question is serious Applications Blanton v. City of North Las Vegas (1989) (1163)  charged with DUI offense carrying either 2 day  6 month imprisonment or 48 hours community work Maj (Mshl): No jury trial right U.S. v. Nachtigal (1993) (1164) Maj: Max of 6 month imprisonment + $5K fine, w/ 5 year probation as alternative to jail, didn t entitle right to jury trial What the Jury Decides Elements of Crime U.S. v. Gaudin (1995) (1164) Trial judge instructed jury that  s statements material under 1001 Maj (Sca): Materiality is jury question b/c element of 1001 violation Facts Relevant to Sentence Length Apprendi v. N.J. (2000) (1165) Statute authorized judge to enhance sentence on finding of commission w/ racial bias Maj: Racial bias must be decided by jury See also Cunningham v. California (2007) (S 55) But see Ice (2009) Maj: judge can make factual findings to give consecutive & not concurrent sentences, b/c jury trial right is offense-specific Dis (Sca): This is arbitrary line drawing (Non) Requisite Features of the Jury Size: Rule: # of Jurors must be e" 6 Williams v. Florida (1970) (1165) Maj (Whi): 6 jurors okay; 12 not req d by Constitution Ballew v. Georgia (1978) (1168) Maj (Blmn): Five-person jury insufficient Rationale e" 6 fosters effective group deliberation Smaller the jury, greater the chance of inaccuracy Smaller the jury, greater the chance of adverse results for defense Minority group representation decreases with smaller juries Unanimity: Not Required When 12-Person Jury - Apodaca v. Oregon (1972) (1170) Maj: Unanimity not required for proof BRD; 11-1, 10-2 permissible. Dis (Doug): Dilutes BRD standard; less of a need to convince others Note: FRCrP 31 requires unanimity Required for 6-Person Jury  Burch v. Louisiana (1979) (1174) Maj: 6 person jury must be unanimous; must draw line somewhere Waiver of Unanimity Ullah (9th 1992) (1173): unanimous verdict right in fed ct cannot be waived. But See Sanchez (11th 1986) (1173): permits waiver when faced with hung jury. Jury Composition & Selection Requirements on Venire 6A: Fair Cross-Section Right (FCSR) Main Rule  has right to jury chosen from a fair cross-section of the community Notes Randomness in venire selection process big factor in legitimizing it No Good Faith Exception U.S. v. Jackman (1995) (1180) Random computer error caused systematic exclusion of minorities from venire Maj:  s conviction reversed b/c of flawed venire process Scope of FCSR 6A Right Applies Only to Venire  Holland v. Illinois (1990) (1176)  alleged prosecutor s discriminatory use of peremptory challenges resulted in petit jury that violated his fair cross-section right Maj (Sca): 6A applies only to procedure for selecting venire, not petit jury; can t guarantee petit jury that is fair cross-section What Counts as  Fair Cross-Section Main Rule (Duren) IF  shows Group excluded from jury array is a distinctive group w/in the community Representation of group in venire is not fair and reasonable in relation to the number of such persons in the community, AND The underrepresentation is the result of a systematic exclusion in the jury selection process, THEN  has made out a prima facie violation of FCSR IF gov t shows that inclusion of underrepresented group would be incompatible w/ significant state interest, THEN  s FCSR has not been violated Applications Thiel v. Southern Pacific. Co. (1946) (1175) Daily wage earners systematically excluded from venire Maj: Violation of 6A fair cross-section requirement Taylor v. Louisiana (1975) (1176) Statute made jury service  opt-in only for women Maj (Whi): Women sufficiently numerous & distinct that FCSR requires them; Man had standing to complain Duren v. Missouri (1979) (1178) Statute allowed women, but not men, to decline jury service by not reporting; only 15% of venirepersons were women, when 54% of county women Maj:  made out prima facie case of FCSR  Distinctive Group Requirement (Fletcher  9th Cir.) Main Rule IF a group is  distinctive, THEN  must show that group Is defined and limited by some factor (e.g., race or sex) Has common thread or basic similarity in attitude, ideas, experience. Has community of interests such that interests cannot be adequately represented if the group is excluded Applications Not Distinctive College Students  U.S. v. Fletcher (9th 1992) (1178) Senior Citizens (+65)  Brewer v. Nix (8th 1992) (1179) Native Americans Living on Reservations  Raszkiewicz (7th 1999) Persons w/ Pending Felony Charges  Barry (7th 1995) EPC: Non-Discrimination Right IF  shows that procedure employed to select venire resulted in substantial underrepresentation of his race or identifiable group to which he belongs THEN  has made out a prima facie violation of EPC  IF gov t shows that it employed neutral selection criteria, THEN EPC has not been violated Requirements on Voir Dire Fed/State Split in Process: Federal: J udge decides whether to ask lawyers suggested questions Federal judges may decide to question based on (1) constitutionally mandated; (2) mandated by supervisory power; (3) judicial discretion. Most States: Lawyers question Constitutionally Required Voir Dire Questions (6A  Impartiality Requirement) Racial Prejudice (Apparent) Rule IF 14A requires state trial judge to voir dire re racial prejudice, THEN racial issues are inextricably bound up with conduct of trial. Applications Ham v. South Carolina (1973) (1181)  black civil rights worker charged with mj possession; counsel wanted q s about race & beard, neither of which judge agreed to ask Maj (Rehn): 6A/14A requires judge to interrogate jurors re: racial prejudice Dis: Should also require q s about beards in 60s civil rights context Ristaino v. Ross (1976) (1182) Black  convicted of violent crime on white man; judge refused to ask race q s Maj (Pow): No violation of 6A/14A here; racial issues not central; deference to judge (AS: Retreat from Ham) Rosales-Lopez (1981) Trial judge refused to ask about racial prejudices where Mexican  accused of smuggling aliens Maj: No 6A/14A violation Capital Cases  Turner v. Murray (1986) (1184) Maj (Whi):  accused of interracial crime entitled to have racial prejudice question Pretrial Publicity Main Rule State trial judge not required to voir dire individually about contents of pretrial publicity to which they have been exposed Applications Mu Min v. Virgina (1991) (1185) State judge didn t question judges individually about publicity; presumed those who remained silent could be fair; questioned others just whether they could be fair Maj (Rehn): Individual req would be too burdensome to require Dis (Mshl): Judge must ask about content of publicity exposure in order to determine effects on prejudice Dis (Ken): Findings of impartiality must be based on more than silence to questions asked en masse. Death Penalty Main Rule State trial judge must grant  s request to voir dire about whether they will automatically apply the death penalty Applications Morgan v. Illinois (1992) (1186) State law required jury to consider mitigating circumstances in capital case; judge refused request to voir dire about automatic implication Maj (Whi): Right not to be tried by jurors who will automatically apply negated by judge s refusal to ask questions Individual Voir Dire Questions Required by Federal Supervisory Power Three General Categories Case has racial overtones Case involves matters about which local community feels strongly Case in which law enforcement testimony is important and likely to be overvalued Excusals for Cause Jurors Who CANNOT Be Excused For Cause Jurors with General Death Penalty Reservations ( Life Qualified Jurors) Witherspoon v. Illinois (1968) (1188) Statute permitting gov t to excuse jurors w/ conscientious scruples against death penalty Maj: Mere scruples about death penalty insufficient for removal for cause Adams v. Texas (1980) (1188) State law req d exclusion of jurors who could not swear that mandatory death penalty would not  affect their deliberations on any issue of fact Maj: Law unconstitutional; not clear they would not follow law  Death Qualified Jurors Jurors With Actual Bias Juror who never said she could or would serve impartially  U.S. v. Gonzalez (9th 2000) Jurors Who CAN/MUST Be Excused for Cause NOTE: Review is highly deferential to trial judge Witherspoon & Morgan-Excludables Rule: IF a juror can be dismissed for cause on death penalty grounds, THEN gov t must show that juror s views would prevent or substantially impair the performance of his duties as a juror in accordance w/ his instructions and oath Witherspoon-Excludables Lockhart v. McCree (1986) (1189)  wanted conviction reversed b/c jurors he got were  death qualified  not unconditionally opposed to death penalty Maj (Rehn): Constitution does not forbid removal of jurors unconditionally opposed to DP Dis (Mshl): Unfair to  s to allow removal of these jurors Buchanan v. Kentucky (1987)  tried with co- who faced capital crime, by jury from whom Witherspoon-excludables had been removed Maj (Blmn): Jury not impartial Wainwright v. Witt (1985) (1190) Trial judge allowed exclusion of juror who expressed that personal beliefs about death penalty would  interfere w/ her judgment of guilty or innocence Maj (Rehn): Deference to trial judge, jurors need not be unmistakably clear Uttecht v. Brown (2007) (S 56) Trial judge allowed exclusion of juror who, while not explicitly against death penalty, had expressed serious reservations about applying it in particular case;  counsel made no objection to exclusion Maj (Ken): Upheld exclusion  deference to judgment, no  objection Dis (Stvn): This was not a  substantially impaired juror; maj ruins standard Morgan-Excludables Morgan v. Illinois (1992) (1195) Juror would automatically impose death despite mitigating circumstances Maj (Whi): Juror must be excluded Jurors With Merely Hypothetical Bias Bank SVP in bank robbery case  U.S. v. Young (8th 1977) (1192) Mother w/ raped daughter in violent robbery case  Young Recent robbery victim in robbery case - Johnson v. State (Ala. App. 1978) (1193) Gov t Employee where gov t a party  Dennis v. U.S. (1950) (1193) Mother w/ son & brother in police  U.S. v. Beasley (7th 1995) (1194) Remedies For Erroneous Exclusions Witherspoon-Includibles (Capital Cases) Rule IF Witherspoon-qualified juror excluded for cause, THEN  s death sentence must be set aside (rationale: structural flaw) See Gray v. Mississippi (1987) (1191) Non-Capital Cases: NO ANSWER YET For Erroneous Inclusions Morgan-Excludibles (Capital Cases) Rule IF Morgan-excludible juror included despite for cause challenge THEN  s death sentence reversible, UNLESS  excluded juror using peremptory challenge Applications Ross v. OK (1988) (1191) Erroneous inclusion of Morgan-excludible, corrected by peremptory challenge Maj (Rehn): No reversal, b/c no constitutional right to peremptory challenges Non-Capital Cases: NO ANSWER YET Peremptory Challenges Rationales Removes extremes of partiality Creates greater acceptance by litigants of results Allow parties to correct judicial errors/refusals to exclude for cause Procedural Rights & Limitations on Peremptory Challenges Number of Allowed Challenges (FRCrP 24(b))  10 peremptory challenges altogether (20 in capital cases) In multiple  cases, court may allow additional challenges Prosecution 6 peremptory challenges Jury Selection Procedure Rule: Trial judges have broad discretion Applications U.S. v. Warren (8th 1992) Trial judge had custom of removing prospective jurors before peremptories;  counsel said this surprised him b/c didn t know names of jurors Maj: No violation of FRCrP, b/c wide discretion to judge No Violation for Use to Cure Erroneous Failure to Excuse For Cause Rule:  s FRCP 24(b) rights not violated by using challenge to exclude juror improperly included after for-cause challenge Rationale: Hard choice not same as no choice See U.S. v. Martinez-Salazar (2000) (1198) Equal Protection Limitations on Peremptory Challenges Main Rule (Batson et al.) (Moving Party = MP) (Challenging Party = CP) MP must have standing to object to challenge, AND show that, on totality of circumstances, that CP s challenge raises an inference of an exclusion on an improper basis  CP must articulate a neutral explanation for challenge, Trial judge must determine if MP has that challenge was more likely than not improperly motivated (proffered reason is pretext) BURDEN: On gov t Notes (IMPORTANT) Process, NOT Outcome: No Batson violation on makeup of jury alone Marshall in Batson/Breyer in Miller-El: Eliminate preemptory challenges Swain Rule: MP needed to prove systematic discrimination across CP s cases If Prosecution didn t have to give explanation, remand on appeal Standing (Virtually Always Have) 3rd Party Standing  Powers v. Ohio (1991) (1205)  white man alleged prosecutor used peremptory challenges to exclude black jurors on basis of race Maj (Ken): (1)  s suffer injury in fact from exclusion of jurors of different race on basis of race; (2)  & excluded juror have common interest in eliminating racial discrimination from courtroom; (3) Unlikely that excluded juror would defend his rights himself b/c of structural hindrance Dis (Sca): No injury here to  to be spoken of MP & CP may be Private Litigants Edmonson v. Leesville (1991) (1206) Maj (Ken): Court s acceptance of biased peremptory excusal is state action Dis (O C): Peremptories are  enclaves of private action ; not state action MP may be Prosecutor, CP the  Georgia v. McCollum (1992) (1207) Maj (Ken): Any biased peremptory excusal is affront to justice, and is state action Party Cannot Appeal on Own Batson Violation  U.S. v. Boyd (7th 1996) (1209)  Exclusion on an Improper Basis  Cognizable Groups Cognizable:  Strict Scrutiny & (Some)  Heightened Scrutiny Groups Hispanics  Hernandez v. New York (1991) (1209) Gender  J.E.B. v. Alabama (1994) (1210) Prosecutor used 9/10 peremptories to strike men Maj (Blmn): Gender not proper basis to use peremptory Ethnicities U.S. v Di Pasquale (3rd 1988) (1212 n.24) Maj: Batson applies to Italian-Americans, but didn t here b/c only proof of prima facie case was exclusion of jurors w/ Italian last names Not Cognizable:  Rational Basis Groups Age  U.S. v. Maxwell (6th 1998) (1071 n.24) Military Members But see Davis v. Minnesota (1994) (1211) Maj: Denies cert from state case denying Batson protection to religion Dis (Thom): Religion requires  heightened scrutiny, so how consistent? Prima Facie Case Standard: Gives rise to an inference Factors To Consider  U.S. v. Esparsen (10th 1991) (1212) If ALL jurors of a group are struck (almost always) Questions asked on voir dire Percentage of challenges used on certain groups Comparison of voir dire answers and jurors struck/not-struck Who actually sat on jury (members of the group?) Unexpended peremptories Rates of striking of group members vs. non-group members Proxy characteristics is probative, depending on closeness of relation Neutral Explanation Rule: Explanation need only be facially neutral Applications Purkett v. Elem (1995) (1213) Prosecutor excluded 2 blacks arguing long, unkempt hair, mustache and goatee; Lower court says unpersuasive Maj: Explanation need not be  minimally persuasive ; just neutral Disparate Impact Rule: Discriminatory impact of explanation irrelevant unless impact is  intended Applications Hernandez (1991) Prosecutor challenged bilinguals on ground that they might not listen to translator Maj (Ken): Explanation is neutral Review of Trial Judge Determinations  Snyder v. Louisiana (2008) (S 59) Judge denied Batson objection to challenge of black juror w/ conflicting obligations, on that asserted ground. Other jurors had even more burdensome obligations and not challenged. Maj (Ali): Prosecutor s explanation too  unconvincing ; case remanded Dis (Thom): Deference to trial judge called for Remedies For Erroneous Exclusion Rule IF juror erroneously excluded despite Batson objection, THEN conviction must be reversed (reinstate jury or new voir dire) See Batson For Erroneous Inclusion Rule IF juror erroneously included despite peremptory challenge, THEN no reversal req d IF all jurors are qualified & unbiased See Rivera (2009), U.S. v. Annigoni (9th 1995) (1209) Remedies Chart w/r/t For Cause & Peremptory Challenge Errors ErroneousInclusionExclusionFor CauseRoss: reversible unless cured w/ Peremptory ChallengeWitherspoon - reversible / ?Peremptory ChallengeRivera  Prob not reversibleBatson - reversible Preserving Integrity of Jury Deliberations Anonymous Juries Rule: Permitted only where reasonable balancing of interests allows Applications U.S. v. Barnes (2nd 1979) (1228); U.S. v. Tutino (2nd 1989) Maj: Trial judge s decision to keep names and addresses of jurors secret OK where (1)  faces serious penalties; (2)  had attempted to tamper w/ jury in past; (3)  is known associates of organized crime; (4) prior convictions for extortion and narcotics; (5) jury protected from media; (6) trial judge reiterated presumption of innocence U.S. v. Sanchez (5th 1996) (1229) Empanelling anonymous jury is reversible error where (1)  not involved in organized crime; (2) no evidence of past tampering; (3) no indication that case would receive excessive publicity. Protecting Against Judicial Influence on Jury Deliberations Answering Jurors Questions Main Rule IF jury has retired to deliberate, THEN judge may not provide jurors with facts not established in the record Applications U.S. v. Neff (7th 1993) Jurors asked judge to clarify information about events outside of record Maj: Judge violated  s 6A right to trial by jury Breaking Deadlocks: Competing Concerns: spur resolution, but prevent coercive influence Permitted Modified Allen Charges: (see Webb 8th 1992) Must Include Recognition that majority of jurors may favor acquittal Reminder that gov t has burden of proof BRD Suggestion to both majority and minority to reconsider decisions Statement that no juror should abandon conscientiously held views Statement that jury free to deliberate as long as necessary In Capital Cases  Lowenfeld v. Phelps (1988) (1232) Cautioned Instruction referring to costs of retrial  U.S. v. Clinton (6th 2003) (1231) Prohibited (generally) Successive Allen Charges Exception: If charges bookend deliberation separated by weekend Protecting Against Juror Misconduct and Outside Influences Juror Misconduct F.R.Evid. 606(b) Rule: Irrelevant Jury Conduct Includes Methods or arguments of jury s deliberations Effect of any particular thing on outcome in deliberations Mindset or emotions of any juror during deliberations Testifying juror s own mental process during deliberations Applications Tanner v. U.S. (1987) (1234) Maj (O C): Juror misconduct hearing properly denied despite allegations that jurors had used alcohol, drugs, slept during deliberations; not relevant for 606(b) Rationale: Avoid routine impeachment of jury verdicts Dis (Mshl):  s right to competent juror is constitutional, & was violated here Lies During Voir Dire on Significant Subjects U.S. v. Colombo (2nd 1989) (1236) Juror deliberately failed to reveal her brother was gov t attorney Maj: Reversal req d if brother really gov t attorney, b/c of partiality But see U.S. v. Langford (2nd 1993) (1237) Juror failed to admit prior arrests for prosecution Maj: No reversal req d, b/c no prejudice  lie out of embarrassment Outside Influences Smith v. Phillips (1982) (1233) Prosecutor did not disclose that one juror s job application was pending in prosecutor s office Maj: No reversal required; no violation of 6A Rushen v. Spain (1983) Maj: No reversal req d where juror complains to judge that  witness had killed her friend and judge fails to disqualify juror. Hunley v. Godinez (7th 1992) (1234) Two jurors who changed minds were victims of robbery during sequestration Maj: Reversal required b/c of outside influences The Trial Judge and the Right to Jury Trial Directed Verdicts of Guilt: PROHIBITED Jury Nullification In General Jury my disregard law and acquit Rationale: Completing the law; supplying moral element that law does not address. Judicial Power to Excuse for Juror s Intent to Nullify Main Rule (2nd Cir) IF judge may grant request to discharge juror for cause for intent to nullify, THEN the record must disclose NO possibility that request stems from juror s view of sufficiency of the evidence Applications Thomas (2nd 1997) (1243) Judge dismissed juror, suspecting that juror was refusing to follow instructions/obey law Maj: Reversed, b/c some indications juror didn t think evidence sufficient No Requirement to Give Nullification Instruction See Goetz: judge not required to admit possibility of nullification during jury charge. Commenting on Evidence: Most states do not allow judge to comment on weight of evidence or witness credibility. Jury Instructions FRCrP 30 Rule: Court must accept or reject charge proposals from counsel before closing argument The Jury Verdict FRCrP 31(d) Rules After jury returns verdict, but before jury discharged, judge must, on party s request, or may sua sponte, poll jurors individually If lack of unanimity, court may direct jury to deliberate further, OR declare mistrial & discharge jury Inconsistent Verdicts: Powell (1984)  convicted on one count of an indictment cannot attack conviction as being inconsistent with acquittal on another count. Lesser Offenses: King (8th 1977)  entitled to a lesser-included offense instruction where: (1) proper request made; (ii) elements of lesser offense identical to part of greater offense; (iii)some evidence would justify conviction on lesser offense; (iv) proof of element differentiating claims sufficiently in dispute; (v) mutuality (both sides can request).     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