Crim Pro Outline

** One essay is 4th Amendment, the other essay is the 5th, 6th and the 14th amendment

Week 1
th
14 amendment
- 4th amendment
- 5th amendment
o No person shall be in a criminal case to be a witness against himself
 Confession must be made freely and voluntary, absent from any sort of
threat, coercion, any violence, or through any implied promises, however
so slight, nor by any exertion of any improper influence

- 6th amendment
- Due process
o Procedural- easier
o Substantive- constitutional guarantee
 Always a Due Process question in each case

4th amendment-
- the right of people to be secure in their person, houses, papers and effects against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue,
but upon probable cause, supported by oath and affirmation, and particularity
describing the place to be searched, and the person or things to be seized
- Break down
o Secure their persons, houses, papers and effects
 Persons: the actual person, or anything that is closely on them
 Houses: home; extends to curtillage; not limited to open fields
 Papers: Diary’s,
 Effects- Cars; containers;

o Against unreasonable searches ad seizures

 Reasonableness clause
• Objective
• Subjective
• Combined

o No warrants are needs if they are based on probable cause

 Warrant Clause
• Based on Probable cause
• Determined by neutral and detached magistrate
• Officer must give oath to the truth of the facts in his afidavit
o Arrest warrants
 o Search warrants

o Search warrant- Specificity

 Describe place to be searched
 Persons or things to be seized

o Exceptions to warrant
 Exigent Circumstances
• Hot pursuit
 Probable cause
 Plain view
 Consent
 Search incident to a lawful arrest

- Types of proof
o Beyond reasonable doubt- very high percentage
o Probable cause- A reasonable belief made by the officer that a crime has been
committed
o Reasonable suspicion- reasonable officer to suspect is afoot

GOVERNMENTAL INTRUSION
- some kind of intrusion into an individuals Privacy

STANDING
- Does the individual have a reasonable expectation of privacy
o (1) D must raise that this particular person has a reasonable EOP in the area that
was searched (Rakas)
o (2) D must be the victim of a search and seizure
o (3) must be able to challenge legality of the search and seizure

o Car
 Rakas: officers spotted a getaway car that was used in a bank robbery. In
the vehicle, officer found weapons. HELD: TEST: Whether this particular
D had a reasonable EOP in the area that was search. APP: since the car
wasn’t his, he did not have standing to bring a 4th amendment claim

 Rawling: just because you own property that was seized doesn’t give you
standing of the search UNLESS you have EOP in that area that was
searched

o Overnight guest
  Overnight Guests have the same expectation of privacy as those whom
live there, thus they have standing

• Minnesota v Carter: Officer walking near a home, and saw the

owner of the home and a guest were packing cocaine with the
window open. Officer obtained a warrant. HELD: No EOP, thus
no standing.
o Concurrence: Almost all social guest have a EOP, but it
depends on the circumstances
o Dissent: all social guests have Standing

• Ex: if I gave you my keys to my car on a trip, then you have a EOP
of you use those areas that was searched

SEARCH

- Means- a person must have exhibited an actual reasonable EOP (subjective) and that
there is a EOP that society recognizes as reasonable (objective.) and if Police have
physically invaded that constitutionally protected are, then that is considered a search.

- What a person knowingly exposes to the public is not protected by the 4th amendment.
But people, in general, have an expectation of privacy if they preserve something as
private.

Electronic Surveillance

- Listening devices
o **Katz- officers place an electronic monitoring device on a phone booth to
record Katz’s conversation.

o Rule- HARLAN TEST

 (Subjective) Person (people in general) must have exhibited an actual

expectation of privacy
 (Objective) expectation of privacy that society recognizes as
reasonable

o False Friends
 Violation of 4th, expectation of privacy
• (1) Police tapping into your phone conversation-(KATZ)

 NO violation if its VOLUNTARY

• (2) Friend is Under cover agent (HOFFA)
 • (3) Friend, tapped the conversation, and transmits to officer
(WHITE)

o Roschin-guy that swallows the capsules and officers take him to the ER and have
his stomach pumped. The Ct Held that that (1) officers had no warrant and (2) it
fails the reasonableness standard because it “shocks the conscious” and it
constituted to a search

o US v White-Facts: false friend was wired with radio transmitter & police
listening & admitted to evidence against him. Rule: evidence of a concealed
transmitter is a violation of 4th without warrant UNLESS Party voluntarily states
to a 3rd party

- Pen Registers- Don’t Violate the 4th amendment because the purpose is to record
numbers, not conversations. Warrant not required

o Smith v Maryland- D called victim that he robbed and the officers asked the
phone agency to add a pen register, which they did. D called victim, and police
caught him. ISSUE- was the use of the pen register constitutes to a search under
the 4th. RULE- Pen registers don’t constitute to a search and don’t require
warrants

- Beeper cases- Depending on the circumstances, it can be a search

o SEARCH
 Karo- officers attached a beeper in the can of either that was sent to the
persons home. RULE- If in mans Castle, property, then its an invasion
of privacy and therefore constitutes to a search

o NOT A SEARCH
 Us v. Knotts- officer places beeper in the drum and were following the D
by air until they lost him, but used to beeper to find him. RULE- If in a
public place, no expectation of privacy and therefore not search. Not
a search under 4th because the D was driving in a public place

Dog Sniffs
- Dog sniffs are not in violation of the 4th because the are used to detect contraband in
enclosed belongings.
- Dog sniffs are allowed for person, but need to Balance the 4th objective test

o US v Place- Officer Dog detected narcotics from D, and found marijuana on his
person. ISSUE- Was the dog sniff constitute to a search? RULE- not a search
b/c dogs are to detect the presence of contraband but they are limited to items
Search of home

Open Fields
- means- any unoccupied or undeveloped area outside of the cartilage
- Do not need a Warrant because the fall outside the scope of the 4th amendment

o Oliver- Officers walked along a space b/w home and a field and about 1 mile in,
they found a field full or marijuana. RULE- not within home space, therefore,
this is considered a open field, and therefore falling outside the scope of the 4th
amendment

Curtilage
- means- land immediately associated with home or area extending to places of “intimate
activity” associated with sanctity of person home and privacy of life

- Factors in determining a cartilage

o (1) Proximity to area claimed to be home
o (2) If its included in surroundings of home
o (3) Nature of cartilage
o (4) Steps taken to prevent area from observation by person passing by

Ariel Search
- Rule- Not subject to searches if, in plain view, can be seen by the naked eye. No
violation of the 4th

o California v Ciraolo- officer on a tip of a 10- 15 foot marijuana plant. Officers

saw it in plain view, but took pictures and obtained a warrant. ISSUE- if the
picture was a search. RULE- Public Navigable airspace- if the public could
have seen it from plain view, there is no longer an expectation of privacy

o Florida v. Riley- officers in helicopter and saw a greenhouse that had no sides
but a cover and the believed it had marijuana. ISSUE- was the search by
helicopeter unreasonable? RULE-Ariel searches allowed since the greenhouse
could bee seen by members of the public, therefore the search was reasonable

Surveillance Outside
- No reasonable expectation of privacy item at issue is in the eye of the public.
o California v greenwood- guy threw out the trash and officers went through the
trash can and found evidence that was later used against him in court. ISSUE-
whether the officers going through the garbage constituted to a search under the
4th? RULE- No reasonable expectation of privacy because once it is in the view
of the public, then privacy is no longer an issue. Since garbage men have to sort
the trash, your privacy is diminished

Technology
 - Thermal imaging device-

o Kyllo v US- cops used a thermal imaging device to detect heat from the D home
because they had a reason to believe he was growing marijuana in attack with
florescent lights. ISSUE- if the use of the device constituted to a search in ones
privacy? RULE-
 OFF THE WALL- not a violation of because it doesn’t evade in ones
privacy
 THROUGH THE WALL- does evade because it searches through the
wall, into ones ptivacy
 HELD- usage of thermal imaging devices are unreasonable because it
intrudes into ones home, therefore constituting to a search

Seizure under 4th

Means: a meaningful interference of individuals possessory interest in that property, and the
issue raised is of that interference was reasonable. If seized properly, then a warrant based on
probable cause is needed or a warrant exception.

Seizure of Thing
- Contraband
- Fruits of a crime
- Instrumentality used during the commission of a crime
- Mere Evidence – (bloody shirt)

o US v Karo- officers installed a beeper container with the consent of the sender.
ISSUE- was the insertion of the beeper a seizure. RULE- yes because the
officers by placing the beeper in the container, converted the property for their
own use.

Seizure of Person
- Means: whenever an officer restrains an individual his freedom from walking away by
force or authority. Person is not seized UNLESS the officer physically touched the
individual OR if the individual submits to the officers authority
o (1) reasonable person would not believe that they have the freedom to leave
o (2) touching by officer to restrain, or a show of authority followed by a
submit to that authority.

 Factors that might indicate a seizure (Mendenhall)

• (1) threatening presence of several officers
• (2) officers display of weapons
• (3) some touching by the officer of the citizen
• (4) words, tone of voice indicating complaince
 - Stop and Frisk rule-
o Means- officers are allowed to detain a person if:
 (1) Reasonable suspicion
 (2) Frisk (pat down) for weapons
• Terry v ohio- Officer, with 39 years of experience saw 3 men
walking back and forth and felt suspicious, so he approached them
and patted the men down, finding guns on 2 of the 3. Issue- was
the stop reasonable under the 4th. RULE- Yes, all officer need is
(1) reasonable suspicion and (2) frisk for weapons, and therefore
it doesn’t constitute to a search. Analysis- don’t need PC because
a suspicion is a lower standard, and officer can only search for
weapons for their own safety, and not for anything else

o De-facto arrest
 When police detain an individual where the D is not free to leave
constitutes as an arrest. The longer the detention, the more it looks like an
arrest, then officers need PC.

• Moving of the suspect against their will

o Florida v Royer: Officer detained D by taking his ticket
and license w/o returning it, and told him to accompany
the officers. The D then consented to the search, they
found drugs. HELD: stopping in airport, and taking him
against his will required PC

• Moving our of car

o Mims: the officer ordered the D out of the car, patted him
down and found a gun in his persons. HELD: the officer
can order a D out of the car and apply the terry doctrine of
a stop and frisk because the D is already in detention.
o Also applies to passenger also (Wilson)

• Length of detention
o Shape: officer stopped a camper on the highway and the
other officer stopped another car as well. The officer that
stopped the camper detained the camper for 20 min for the
other officer to arrive, and when they did, the officer
smelled marijuana form the camper. HELD: it was
reasonable because the delay was not because of the
officer, but the delay of the river of the other car, who
sought to elude the officers.

WARRANT REQUIREMENT
** if no warrant, then its so called unreasonable

SEARCH WARRANT- to do search of person, place or thing

- Probable cause
o Means- Officer has a reasonable belief that evidence to a seizure will be found in
place to be searched (OBJECTIVE)
o Informant Information:
 Can PC be determined from hearsay evidence?
• Aguilar & Spanelli/ Gates- 2 Prong approach
o (1) Basis of knowledge- (Credibility)- is the source a
credible source
o (2) Veracity prong- (Reliability)- is the information
“credible”
o (3) Totality of the circumstances
o From here, then the judge makes a common sense decision
whether the there is PC

o ** if it doesn’t amount to PC, it may amount to reasonable

suspicion.

 Anonymous letter = no
 Anonymous letter + totality = PC

- By neutral and detached magistrate

o Lo-ji v NY--Where the judges went to the XXX shop and seized items. Held:
Judge was no longer neutral and detached once he accompanied the officers
- Particularity
o Place to be searched
 Home
 Person
o Items to be seized
 Fruits
 Instrumentalities
 Evidence
 Mere evidence
- Specificity
o Does is specifically say what is to be seized, i.e., diamond ring

*** Franks: what happens if an officer tells a lie when a magistrate issues a warrant. RULE: D
cannot attack the warrant UNLESS the D can show 3 things
(1) false statement included in affidavit
(2) Substantial evidence that officer made that false statement intentionally or reckless
disregard
 (3) False statements were made necessary to obtain the warrant
a. If this is found, then the evidence m

ANTICIPATORY WARRANT
- Warrant that shows that in a future time and space, certain evidence of a crime will be
located

ARREST WARRANT

(1) Public
a. No warrant is required if in a public place even if they had time to get an arrest
warrant.

(2) Home

a. Probable cause- facts or circumstances that a reasonable person would belief that
crime will or is about to occur
i. Look at Aguilar/spanelli/gates
b. Specificity—the warrant must state who is being arresting (name, address)
c. By neutral and detached magistrate
i. Payton v. NY: police had PC to arrest person but no arrest warrant nor did
they have authority to enter the home to make a routine felony arrest.
HELD:

(3) in the Door way:

a. if individual is in the door way of home, one step from being outside, one step
from being inside, this is considered to be a public place.
b. Individual must be in the house with the door closed to be protected by the 4th

Gerstein hearing
- Means: if arrested by felony, without a warrant, the individual is entitled to a hearing on
whether the officers has Probable cause
o Upon Probable cause, the courts are “bound over” for trial.

REASONABLENESS CLAUSE OF 14th AMENDMENT: Execution of a

warrant

(1) Knock & announce

a. How long do officers must wait
i. Reasonable under certain circumstances where evidence or person may be
destroyed: 15-20 seconds
b. Imbedded in the constitution by the 14th amendments reasonableness clause
c. EXCEPTIONS
i. Reasonable suspicion that:
1. Threat of violence to police or others
 2. Reasonable believe that criminal evidence is going to be destroyed
3. Hot pursuit
(2) Day time
a. Cant be at night because home is man’s castle, and if entered, officer may be hurt,
thus required officers to do this in the day time
(3) Search v Arrest warrants
a. Search: needs to be home and at the persons home in order for it to be reasonable
b. Arrest: No Time limit
1. ex Ex- cant arrest me if they have an arrest warrant and I am not
in my home. The officer’s first needs a search warrant to search
for me in friends home then they can execute the arrest warrant.
2. Ex—if they have an arrest warrant and I am in my own home, then
they don’t need a search warrant. Can do a knock and announce,
and come in.

Week 4
NO WARRANT- EXCEPTIONS

** if officer does not have a warrant, then its is per se unreasonable and evidence will be
suppressed UNLESS there is an exception.

**SEARCHES ONLY

EMERGENCY EXCEPTION
(1) Exigency where there is no time to get a warrant and reasonable in the time and
circumstances
(2) Probable cause:
i. Warden v. hayden: hot pursuit with the D and he ran into this house. A
lady opened the door, and she allowed officers to enter. Officers searched
and found the clothes in the washing machine and they found a gun in
toilet bowl. Issue: was this a search in accordance with the 4th? HELD:
No, b/c the officer had Probable cause to believe that there was a gun,
and that they were in hot pursuit of the D. Court concluded that warrant
wasn’t necessary because it was reasonable under the circumstances

SEARCH INCIDENT TO A LAWFUL ARREST (SILA)

- If arrested, police have the immediate authority, W/O A WARRANT, to search arrestee
person, place or things that are in their grapple space
- Incident: immediate in time and space

o Home

 Was there a Lawful arrest based on Probable cause

  Was there an arrest warrant in the house?
• Probable cause?
 Limited to lunge space
• Means: a place that is immediate in the area where person is
arrested
o Person
 Robinson: officer stopped a D while driving with a
suspended license, and did a frisk, found a cigarette
case that had gel packs of cocaine in it. HELD:
Officer were allowed to search person AND
containers on that person

o Immediate spaces in D control

 Grabbing area where this particular suspect may be
able to grab a weapon or destroy evidence
• Open a drawer in a desk it within same room

o Closets adjoining place of arrest

 Boie sweeps: areas large enough to hide a person

 Search Warrant Not required

o Boie / Protective sweeps

 Rule: if there is a lawful arrest, then officer may, w/o PC or RS look in
closets, and other spaces immediately spaces from where attack can be
launched.

o Car
 When officer makes a lawful arrest, he may contemporaneously search
person, and can automatically search passenger compartment including
containers
• Contemporaneously: needs to be in the immediate vicinity in the
grabbable space
o Belton v. NY: officer stopped a car then, and the officer
smelled marijuana and saw a envelope that said super
gold. Held: officer can search vehicle, and containers
inside the car, but not the trunk

 Recent Occupant in close proximity at the time of the arrest and search of
vehicle and person is allowed
• Thorton: Driver got out of the car, and officer arrested D and
searched the car and found drugs. HELD: that since the D was a
recent occupant and it was in close proximity that D exited the
car, then the search was allowed.
MOTOR VEHICLE EXCEPTION

- Mobility
o If the car has wheels, then it’s movable.
o Lesser EOP than a home
 California v carnie: Police wanted to search a parked motor home
because officer had a reasonable belief that the D was selling drugs for
sex. HELD: assuming PC, the police can conduct if the vehicle is
capable of such use, and found stationary in a place not regulary used
in residential purposes

- Probable cause
o If the officer has a reasonable belief that there is criminal evidence

- Pre-textual stops
o If civil traffic law has been violated, and if officer has PC, and if the officer does
a search of person or chattel, then its allowed because of the 14th amendment’s
reasonableness clause
 Carol v US: officer stopped car for selling bootleg liquor. HELD: Police
can conduct a search of a vehicle being used on the highway

 Whren v. US: officer saw car that was stopped but had reasonable
suspicion to investigate, but the car drove of & turned w/o signaling.
Officer pulled over the car and saw crack in the D hands, and seized the
substance. Issue: whether a pre-textual stop is reasonable to make a
search? Held: Yes, but only if it is reasonable

- Containers in Cars
o US v. Chadwick: the police had notice of the D was carrying a footlocker on a
train, but they didn’t search automatically. The officers waited until the D and a
friend were placing the footlocker in the trunk of a car, and as they were doing
so, then the cars intervened. Seized the footlocker, took it to the precinct, opened
it and found contraband. HELD: if the container is not in a car, have a Full 4th
amendment right for an EOP, officer can seize item, but they must obtain a
warrant for it to be lawful

o California Acevedo: Facts: Police saw the D coming out of house coming with a
paper bag, placed it in a trunk, and then the police intervened, searched the trunk
and the paper bag, and found marijuana. HELD: If the police has PC to search
the car, and during that search, they come in contact with a container, they
may open it, assuming that the container is large enough to hold whatever it
is the police are looking for.

- Can Officers search passengers and their containers?----YES

 o Wyoming Houghton: HELD: officer can search passengers and their contents,
even their containers

INVENTORY SEARCH EXCEPTION

- People
o Once taken into custody, their property is inventoried
o Purpose is to protect the property of the person

- Automobile
o Once automobile seized, and officer search, (w/o warrant, or PC) and if they find
criminal evidence, then that evidence can be used against you in court
 (1) Reasonable suspicion
 (2) Legally seized
 (3) Search is according to department regulation
• Michigan: (1) 2 cops, (2) Written list of what they find
• Opperman: officers Governmental interest is weighed against the
reduced expectation of D privacy. (1) to protect car owner (2) to
protect the police from lawsuit (3) Dangerous instrumentalities

PLAIN VIEW EXCEPTION

- Lawful intrusion
o Search warrant, or the equivalent
- Item is immediately apparent, and found inadvertently
- Probable cause to seize
o Ex: if officer waking on a sidewalk, and D left his blinds open, and officer sees, a
Picasso painting, may he go into the house and seize the painting. (1) was the
item apparent- YES, (2) lawful intrusion- no, unless he has a warrant

o Arizona v hicks: Guy shot a gun from the upper-level apartment to a lower-level
apartment. Officer saw a stereo, and moved it and noted down the serial number.
Issue: was this a search? HELD: Yes, because Moving the Object constituted
a search. The court reasoned that the item was not in plain view and when
the officer moved the item, it was per se unreasonable unless there was a
warrant

PLAIN TOUCH
- (follow plain view elements)
o Dickerson: officer law fully stopped dickerson, and frisked him for weapons, and
when they patted him down, he felt small objects in D clothing. He finished the
pat down for weapons and later came back to the object he felt. He caressed he
item, then went into the pocket, and found crack. Issue: was the Search in
violation of 4th? HELD: Yes, (1) lawful intrusion—yes because of terry, (2)
 PC- yes because he was suspected of criminality, (3) was it immediately
apparent—No, because the frisk was for guns, and not for drugs, and the
officer only had a hunch it was drugs. Thus it is

CONSENT

- Officers must have legal valid consent that is (1) voluntary, absent from duress, and (2)
that person giving consent must have Authority to give consent.

o (1) Voluntary
 Look at the totality of the circumstances
• Words
• Gestures—using gun
 Coercion/ duress- person has a limited choice to make, forcing them to
make a decision
 Overcoming the person’s will
• Bustamonte: Knowledge of the right to say no, is one of many
factors governing the voluntary issue

o (2) Did the officer go beyond the scope of the consent

 Scope is determined to what a REASONABLE PERSON would interpret
as consent to include
• Jimeno: F- officer received consent from D to search his car, and
officer found a folded bag, and found contraband. HELD:
reasonable person in officers situation, would find that consent
was valid BUT, it doesn’t mean you can search ANYTHING in the
car

o (3) Authority
 Third person
• Matlock: Joint users all have a right to consent, and other users
must assume the risk that the other co-owner will consent
o Applies to person who isn’t present also at the time of the
search
 EX
• 2 dorm partner, one partner consents, and
the other says no, the court may favor the
yes over the no

 Person who officers reasonable believe had authority but did not.
• Illinois v Rodriguez: Lady that said that her boyfriend beat her up
and told the officers that he was in “our house.” Officer then
entered home, and found the D in bed. Officers believed that Lady
had authority to give consent. Problem was that she lived there
before, but moved out a long time ago. Issue: was her consent
 valid. HELD: as long as a reasonable officer could believe that
the consenting party had authority over the premises, then the
search will be valid.
• Ex: police have PC to believe that Peden has Herbs in his home.
Peden isn’t home but George, the cable guy is fixing the cable box.
Officers come and they ask George whether they can enter the
home. George consents and the officers search and seize and
charge Peden with possession of contraband. The consent isn’t
valid because George did not have authority to consent. If it was
Pedens wife, or someone of age, then its different.

o (3) exceptions
 Consent can be withdrawn at any time
 Consent can be limited to time & space

TERRY STOPS
- Based on reasonable suspicion (minimal level of objective justification/ more than a
hunch, less than PC), which is a lower standard that PC, where criminal activity is
afoot, officer can seize a person (means: officer restrains a D freedom to walk away
by the use of force or show of authority) and frisk that person ONLY is that person
is ARMED AND DANGEROUS. The court looks at the totality of the
circumstances to see if that was “per se” reasonable in accordance with the 14th
amendment due process/ equal protection. Then the court must balance the gov’t
intrusion against the D EOP.
o If the officer did not feel a weapon, then the search must cease, UNLESS
officer has a warrant.

- Stop
o Reasonable suspicion: Means lower standard that PC, where criminal activity is
afoot
 Seizure of a person

 Hodari: person not seized unless the officer touches the individual or the
Individual submits to submit to the officer’s authority.
• If the officer is chasing the D, without RS, and the D throws
something to the ground, that evidence that was thrown to the
ground can be used because the D abandoned it.
• Inadmissible if what the officers were doing was a seizure, and if
the seizure was invalid, then the evidence will not be used because
it will be tainted.

- Frisk
o Officer can Frisk/ search for WEAPONS ONLY
 Terry v ohio- Officer, with 39 years of experience saw 3 men walking back
and forth and felt suspicious, so he approached them and patted the men
down, finding guns on 2 of the 3. Issue- was the stop reasonable under
 the 4th. RULE- Yes, all officer need is (1) reasonable suspicion and (2)
frisk for weapons, and therefore it doesn’t constitute to a search.
Analysis- don’t need PC because a suspicion is a lower standard, and
officer can only search for weapons for their own safety, and not for
anything else.

- Terry Extended

o Stop and Frisk of a CAR

 If the officer has RS that there is a weapon in the vehicle, then the officer
can search the passenger compartment, the whole compartment for
weapons.
• (1) lawful Stop
• (2) Reasonable suspicion that weapon is in the car
o Michigan v. Long: officers stopped a car, and saw a knife
in the car. The officer took the guy ot te

o Buie Sweeps (look below)

o Stop and Frisk of Property

 US v. Place: Dea suspected D to be harboring narcotics in his suitcase,
and contacted the DEA in NY, who took action. The DEA intervened and
asked to search D suitcase, and he declined. The DEA took the suitcase
for 20 min, and had a dog sniff, tested positive for drugs, but it was late
Friday and couldn’t obtain warrant until the following Monday . HELD:
officer can temporarily detain property if they have RS, and can
investigate until they obtain PC.

o Sobriety Check-point Doctrine

 Sobriety checkpoints are permissible, by balancing the gov’t interest
against D EOP

o Drug checkpoints
 HELD: police cant simply create checkpoints to find crimes in general.
To use highway checkpoints that it isn’t directed to highway purposes was
in “per se” unreasonable.

• Edmonds: city set up checkpoint for drugs, had dogs present, and
D was found to have drugs in his car. Issue: was the checkpoint,
that was for ordinary criminal activity, in violation of the 4th?
HELD: Balance test (govt v. D) and look to the purpose of the
checkpoint. If the its for the benefit of the govt, then it is
reasonable. But if it is not, then it is unreasonable. APP:
purpose was to search for criminal activity, not for the benefit of
 the govt in protecting the safety of its citizens. Therefore,
checkpoint unreasonable
-
- Specific Question
o If the crime has already occurred, then officers may also stop and frisk
o Short and brief questioning does not constitute a seizure
 A person is not seized UNLESS a reasonable prudent person would
believe that are not free to go.
• Mendenhall: lady became nervous when the officer told her that
they were federal officer,
o Informant Tip
 Use the aguilar/spanelli/gates and come to a common sense decision

BUIE SWEEPS

- Quick and limited search visual inspection in areas where person could be hiding and that
particular place might harbor an individual, that may pose threat to the officer, and find
person or things in plain view, then the it can be used in court.

- (1) Lawful Intrusion

o Arrest
o Search
o The equivalent

- (2) Reasonable suspicion: Protective weep to areas of where people could be hiding,
closets, and rooms, but not through drawers or places where a person could be hiding.

o Buie: HELD: quick and limited areas where people could be hiding, only If the
officers have a RS that the area to be swept that may cause harm to the officer
(home)

- Bus Sweeps
o (1) would a reasonable person believe that their freedom has been restrained
o (2) consent- Voluntary absent from coercion.

SPECIAL NEEDS
- Administrative searches
o RS to believe that Criminal activity is afoot
 Searches at concerts
 Sporting events

- Public school searches

o May search students w/o warrant if 2 things are met
  Reasonable Suspicion that search will result in evidence in violation of
criminal law or school rule
 Not excessively intrusive in light of the age & sex and nature if the
infraction of the investigation

- Drug Testing
o Need a warrant
 Furgesson v. Charlston: Drug testing by hospital conducting urine tests
and handing that over to the police. HELD: needed a warrant

- Border searches
o Reasonable suspicion to conduct a search
 Entire car
 Tires
 Gas tank

**FOR THE TEST, IF EXCEPTION APLPIES, DISCUSS IT THROUGHLY

**FOR THE TEST, IF NO EXCEPTION APPLIES, THEN YOU NEED TO APPLY THE 14TH
AMENDMENT REASONABLENESS CLAUSE

Week 7

Exclusionary rule

- Judge made law that states the evidence obtained illegally by federal or state officials are
inadmissible in court. Purpose is to deter police misconduct.

o Cases
 *Wolf- evidence obtained illegally by federal officers is inadmissible in
court and violates D Due Process

 *Weeks v. US- officer that entered into D home and seized papers and
handed to Marshall. Later, officer and Marshall accompanied and
obtained more from D residence and had no warrant. RULE- The Ct held
that is was a violation of weeks 4th and 14th and that the evidence that was
obtained illegally cannot be used against them in a court of law

 ***Mapp v Ohio-
• Facts: officers entered into Mrs. Mapp’s home, the second time,
and she demanded a warrant, and officers showed paper which
Mapp snatched and placed in chest. After retaining her, officers
searched her home and found substances.
 RULE: Ct ruled that the exclusionary rules now applied to State officials as well as federal
officials

Good faith Exception to exclusionary rule

- Means: even if evidence was obtained illegally, if the officer acted within good faith, or
had an objective reasonable belief that the evidence was obtained lawfully, then the
evidence will be admitted.

o Exceptions to Good faith

 (1) officer lied to the magistrate, then no good faith
 (2) If the magistrate is not neutral and detached
 (3) If officer’s affidavit that was used was missing certain parts
 (4) If the warrant, on its face, is deficient

o Objective reasonable belief

 US v. Leon: Officer, on an informant tip, investigated D who were selling

large quantities of narcotics, and based on their investigation, they
followed steps to obtain a warrant. Couldn’t use the warrant because
there was no PC. HELD: the officers Good Faith reliance on the on the
warrant must be objectionably reasonable. REASONING: officers
believed that since the judge issued the warrant, they had the power to
execute the warrant, which was objectively reasonable. Mistake was
made by the judge, not the officer.

 Mass v. Sheppard: Officer that made his own search warrant paper
because it was Sunday, and couldn’t find another paper. He deleted the
title, and then took it to the residence of a judge, explained his changes
and the judge signed. HELD: officer knew that the warrant was defective,
but followed steps to produce on. Also, the judge reviewed it, and he
made changes himself, and then gave it to the officer. Officer has a
reasonable belief that the warrant was valid.

o Good faith in Non-warrant situations

 Arizona v. evans: Officer stopped a car and when he checked his

computer, it stated that there was a warrant for the D arrest. Then when
the officer searched his car (SILA), the officer found drugs. Later found
our that the clerk failed to update the Defendants status on the warrant.
HELD: evidence was admissible. REASONING: officer relied on the
computer and since the error was not made by the officer, then he acted
reasonably, and evidence is admissible.
Impeachment Exception

o Exclusionary rule doesn’t apply to preliminary hearing, probation, parole hearings

and sentencings.
o Impeachment of-defendant exception: Defendant cant take advantage of a
courts exclusion of narcotics found on his persons by testifying that he never
possessed the narcotics. The exclusionary rule is a shield and cannot use the
shield as protection from untruthfulness

Fruits of the poisonous Tree

- Means: Extension of the exclusionary rule, where evidence gathered with the aid of
illegally obtained evidence. The logic is that if the evidence (TREE) is tainted, then
anything gathered form it (FRUITS) are also tainted
- Elements
o Identify the tree (constitutional violation)
o Id the fruit (Evidence government seeks to introduce)
o Casual Link (did the fruit come from the tree)
o Exceptions
 Attenuation (remote)
 Independent Source
 Inevitable Discovery

• Ex: officer does a warrantless search and finds a diary that has a
name that will be a witness against the Defendant. Officer goes to
that person and she agrees to testify against the D. what is
inadmissible. (1) the diary, (2) the testimony of witness is
excluded because it is a fruit of that illegality. Anything obtained
after is excluded.

- EXCEPTIONS TO FRUITS OF POISONOUS TREE

o Attenuation Doctrine (remote in time and space/ dissipation of a taint)

 (1) Identify the primary illegality (officers wrong doing)
 (2) if the connection between the primary illegality and the evidence that
party wants to suppress is so remote or so drawn away in time and space
and look at the factors:
• (1) the length and time that has elapsed b/w the initial illegality
and the seizure of the fruit
• (2) existence or absence of intervening causes
• (3) The absence of an act of free will by the D resulting in the
seizure
 o Wong sun: Hom way  Black toy  Johnny yee  sea
dog (wong sun).

o Independent Source Doctrine

 Permits the introduction of evidence initially discovered during or as a
consequence of an unlawful search, but later obtained independently from
lawful activities, making the evidence untainted

• Murray v. US: Officers, on an informant tip, followed a green

camper to this wear house and saw containers being loaded to the
camper. Officer’s intercepted and arrested the drivers of the
containers and found that the containers contained marijuana.
Officers then forced entry to the wear house and in plain view saw
the containers, but didn’t search until they obtained a warrant.
Got warrant, but didn’t tell magistrate that they entered
warehouse, and found a lot of drugs. HELD: since there were
two sources of obtaining evidence of the drugs, (1) unlawful entry,
(2) lawful search with a warrant, and since the seizure was lawful,
the illegality remained untainted

o Inevitable Discovery Rule

 Means: post; evidence linked to an earlier illegality is admissible if the
prosecutor proves, by preponderance of the evidence, that the officer
would have inevitable discovered the information, by a lawful means, then
there taint doesn’t apply.
• Nix v. Williams: 10 year old girl that went missing from the
YMCA. Officer gave the dude a “Christian burial speech” and he
told the D where the body was because it was snowing but they
would have found the body inevitably.

Week 8
th
5 Amendment
Double Jeopardy

- 5th amendment: “No person shall be subject for the same offense to be twice put in
jeopardy of life or limb.”

- Requirements
o (1) when does DJ attach
 Jury trials: when jury is sworn
 Bench trials: when 1st witness is sworn

o (2) Relevancy
  The claim must be relevant in some way

• Non-EX: X kills A and raped C. those are two separate crimes

• Ex: X rapes and then kills A, must

o (3) Same offense

 Test: to determine whether the same act or transaction constitutes a
violation of two separate statutes, the test is whether each provision
requires proof of a fact that the other does not

 GR: 2 crimes do not constitute the same offense if each crime requires the
proof of an additional element that the other does not.
• EX:
o larceny – A, B, C, D
o Robbery- A, B, C, D, E
 DJ applies
 Brown v. ohio: dude that stole car for 9 days. He
was charged for joyriding and convicted. He did
his 30 days and later was charged with GTA and
joyriding. HELD: Blockburger test. REASONING:
since joyriding was a lesser included offense of
GTA, he did his time, therefore its DJ

• Non EX:
o Larceny- A, B, C, D
o Murder- A, B, C, E
 DJ doesn’t apply, 2 separate claims
 Blockburger: D was selling drugs to the same
person but on different days. D argues that since
the 3rd and 5th transaction constituted as the same
offense. HELD: when the impulse is single, only
one penalty should apply, but when there is a single
impulse with 2 outcome, then 2 different actions.

o (4) Unit of Prosecution

 How many crimes have been committed.

Former Adjudication

- Collateral Estoppel: precludes the same issues to be re-litigated after a final judgment has
been entered.

- Requirements
o Same issue
  Fong foo: corporation that was charged for concealing matters.
Obtained witness’s and after 3 of the 4 testified, the judge instructed the
jury to acquit the charges (final judgment). Plaintiff then obtained a writ
of mandamus, and new trial was granted. The P then brought the same
charges against the D. HELD: DJ is attached because the verdict was
final, and since the issues were all the same, it is a violation of the 5th.

o Final judgment
 Ashe v Swenson: Dudes that robbed a poker game. The first guy that was
robbed brought his claim against the D. The D was found not guilty. 6
weeks later, the other guy that was robbed brought his claim. HELD:
Collateral estoppel—bars issues of fact that have already been fully
litigated, which are brought in a second claim.

Mistrial v. Dismissals

- Mistrial: sets forth a different date form trial

- Dismissal: requires a party to re-file the claim
- Test
o The mistrial must have been required by “manifest necessity” or the “ends of
public justice”

- Who moves for a mistrial

o Sua sponte: the court on its own
o By motion
 Misbehavior b/w the parties to steer the opposing party to file a motion for
mistrial and knowing that party will get a new trial, then the second claim
will be precluded.

• Downum v. US: Attorney selected the jury but the key witness
was not present and needed the court to grant a mistrial. HELD:
Claim was precluded. REASONING: The prosecution should do
their job to make sure witness’s are present, thus the second claim
is barred.
• Illinois v. sommerville: the case went to trial where the prosecutor
did not charge a crime under state law and could not be amended.
The only alternative to mistrial was a verdict. If the verdict was a
conviction, then it was a reversal. After the jury was sworn, but
before the evidence could be presented, the court granted mistrial.
HELD: no DJ. REASONING: trial court can grant mistrial if
verdict can not be reached or case would have to be reversed on
appeal. Manifest necessity test

Dual Sovereignty Doctrine

 - when a D, in a single act, violates the peace and dignity of two sovereigns, he has
committed 2 distinct offenses

o Federal/ state: no preclusion

 Kidnapped in NY, and traveled through NJ, no DJ because not the same
sovereign

o NY and NY/ federal and federal: Precluded

 If drunk and charged for 2 separate laws but within the same state, then
the dual sovereignty doesn’t apply because it is within the same locality of
the other claim, therefore, DJ.

Immunity
- Transactional: prohibits the government from prosecuting a witness for any crime
revealed during the prosecutors questioning of the witness

- Use and derivative use: Prohibits use of testimony or evidence denied from the witness’s
testimony
o Note: the individual may still be prosecuted despite a grant of use immunity

 I get called to testify what I did as an accomplice. Those statements

cannot be used against me

Week 9
Self incrimination
- 5th amendment: “No person shall be compelled in any criminal case to be a witness
against himself
o Chavez v. Martinez: Officers shot the D, and went to the hospital and obtained
the confession of him taking the gun. He was never charged with the crime.
HELD: D 5th amendment right isn’t violated unless he is compelled to testify
against himself. Reasoning: since there were no charges against the D, then
he cannot be compelled to testify against himself. 5th attaches when the
statements obtained are used against the D at trial.

Confessions:
- must be made freely and voluntary, absent from any sort of threat, coercion, any
violence, or through any implied promises, however so slight, nor by any exertion of
any improper influence

- Torture and confessions

o Any infliction of pain or threat to inflict pain to confession is not admissible.
  Hector v. State: 1800 case where the white mean whipped the black men
for a confession. The witness told the men being whipped that they should
confess and tell them the white men the location of the money, so the black
man did. No money was discovered, and the witness whipped him.
HELD: Confession was not voluntary because the white men whipped out
a confession.
 Brow v. Mississippi: early 1900 case where the deputy hung the D to a
tree to obtain a confession form him. They let him go, but a little later,
they went to his home, placed him under arrest, took him to a remote
location and whipped him till he confessed. HELD: Not voluntary.
REASONING: the D had no other choice other than to confess.

- Police interrogations without torture

o If freely, knowingly, and intelligently made, then the confessions are
admissible

 Lisenba v. California: dudes that werw planning to kill the wife with the
rattle snake. The husband gave one confession and the other guy gave
another confession. One of the officers slapped the D. HELD: although
the officers used force, the confession made by the D were freely and
voluntarily made.
 Bram v. US: Dude that killed the guy on the boat but the customs agent
lied to the D telling him that he has a witness that saw the entire thing. D
made an incriminating statement “no person could have seen my at the
angle.” HELD: statements were inadmissible, because but for the officer
lying to him, statements were not freely and voluntarily made.

- Torture warrants
o If you have a ticking time bomb case, and a terrorist knew exactly where it was
located, then majority of democrats say use the torture.

- Right to counsel during interrogations

o Have the right to counsel when one is interrogated by the police

 Escobedo: case where the officers denied the D to see his lawyer and
denied the lawyer to see his client. After telling the D that the lawyer
wished not to see him, then the D confessed. HELD: Confessions were
inadmissible. Reasoning: the conduct of the officers was coercive and
overcame his will, thus made were involuntary.

Week 10

CUSTODIAL INTERROGATION
- (1) Custody:
 o Means: person who has bee taken custody or a reasonable belief that the
individual has been deprived of his freedom of action in any way
 Arrest
 Stop and frisk
 In bar, and officer can detain you for questioning

- (2) Interrogation or functional equivalent

o Means: Express questioning, or its equivalent, that extends to words or actions on
the part of the police which the officer should have known were reasonably likely
to illicit an incriminating response
 Objective
 Subjective

o or its functional equivalent

 Written Questions

• Oregon v. Mathiason: Dude confessed to the burglary after the

officer lied to him telling the D that they had finger prints of him
and then he confessed. Officers gave him Miranda, and he made
more statements. But officer told D that he will have to see
whether the DA will bring charges against him. Issue: whether
the statement prior to Miranda are to be suppressed. HELD: he
was never in custody, therefore the D cant use the Miranda
protection to suppress the confession.

- *** Custodial interrogations are inherently coercive, because the D is under the control of
the officer, and person is not free to leave,

MIRANDA

- (1) Miranda Warnings (4)

- (2) Once a person has plead the 5th, then the interrogation must cease UNLESS the
individual in custody voluntarily initiates the conversation

o Miranda isn’t offense specific

 How this works: once asserted Miranda, all questioning by the
government must cease. but if questioning continues, and you don’t
confess to crime A, but do confess to crime B (irrelevant to the arrest,)
then those assertion to crime B cannot come in because invoking Miranda
prevents all questioning, even those irrelevant to the claim

- (3) If the questioning continues, the burden is on the government to show that the D
has waived their right
 o D must Voluntary reject the offer by stating it, absent from force, duress,
violence, coercion, etc…, and anything less is not a waiver

 Miranda v. Arizona: Guy was arrested and placed in interrogation room,

and signed a waiver stating that he confessed, voluntarily and the having
full knowledge of his legal right.

IF NO MIRANDA, WAS THERE A WAIVER?

- WAIVER MUST BE EXPLICIT

- Right to remain silent

o Affirmative act
o Voluntary
 Means: the action by a person whose will is not overcome by the state.
Burden is on the government showing that the D actually did waive and
how his will was not overcome

o Knowingly/ intelligently
 Means: if the suspect hears the warnings and UNDERSTANDS them, then
answers the question in absence of the lawyer, it would seem they did so
knowingly and intelligently
 Suspect must have full awareness of the consequences of abandoning the
Miranda rights but needs not have awareness of the full consequence.

o Absence from coercion

 No force, duress, by words or gestures or through police presence, then
there is no coercion

- Right to counsel
- ***Silence alone is insufficient, but coupled with something, then it may be valid.

o North Carolina v. Butler: Dude that was arrested by the officers and placed in
the interrogation room. He didn’t want to sign anything but he made a statement.
He later moved to suppress the information b/c he wasn’t advised of counsel.
HELD: a party can waive their Miranda rights if it was voluntary, intelligently,
and knowingly made. Also, waiver MUST be express or implied and that
silence is never sufficient as a waiver. Burden is on the state to prove that D
actually waived their right to counsel Reasoning: made the statements
voluntarily.

- Can waive Miranda even if counsel has been provided

o Can waive Miranda right to counsel even if lawyer has been provided so as long
as the waiver is voluntary, knowingly and intelligently made, absent from
coercive behavior.
  Burbine: sister already provided counsel to the D, who was in custody.
D invoked his right to counsel and questioning ceased. Some hours later,
the officers gave him Miranda and re-questioned him, and he confessed,
w/o the lawyers telling him that his sister obtained a lawyer for him.
HELD: there was a valid waiver because the statements were voluntary,
knowingly and intelligently made absent from coercive behavior by the
officers

EXCEPTION TO MIRANDA

- (1) Miranda warnings are not required when the suspect is unaware that he is
speaking to law enforcement officer and give them a voluntary confession

o Illinois v Perkins: Facts: inmate, told an undercover cop in jail about a crime,
after the undercover agent and friend schemed to escape.
 Dissent: deceptive tactics to move around Miranda

• Ex: guy has 4 claims, 3 is a felony, 1 is a misdemeanor. Officer

says that he will dismiss the 3 felony and only charge the D with
the misdemeanor ONLY IF D confesses’ to all crimes.
• A- Cop cant dismiss cases. Balance the 14th voluntariness of the
confession. (voluntary, intelligently, intelligently)

- (2) If the suspect is unaware that he is speaking to a undercover cop, and volunteers
to talk, then those are admissible because they have waived their right to remain
silent

- (3) Confession can be used to impeach D testimony if the D testifies in his defense at
trial, even if it is in violation of the 5th

- (4) Public Policy exception

o When dealing with public policy, statements made prior to Miranda are
admissible. It is an objective standard where one needs to balance: public safety
Versus Miranda requirements

 NY v. Quarles: Lady said she was raped by a guy named Big Ben, and he
was in the supermarket. When the officers arrived at the market, they saw
the D running, and chased him. They asked him where the gun was and
he said it was near the fruit. Officer’s then gave him Miranda and asked
him about the gun. Issue: was the statement prior to Miranda
inadmissible? HELD: it was admissible due the public policy doctrine.
Balance the Public’s safety with the D privacy and the publics safety
rules.
*** Miranda isn’t crime specific, so once you plead the 5th, all questioning must stop, and if
questioning continues, and you state another crime, which isn’t voluntary, then its not
admissible in court.

*** Traffic Stops: don’t need to give the person Miranda

*** Exclusionary rule: Applies because the statements can be suppressed or excluded

***Fruits of the poisonous: Miranda is fruitless because it is not protected by the 5th
amendment. Therefore, it is fruitless

2 STAGE QUESTIONING
***NO MIRANDA  Statements  Miranda  Statements

- Oregon v. Elstad: Dude that was convicted of burglarizing the neighbors home.
Officers found the boy in his room and took him to the living room. They asked him
questions without Miranda. He said it was he who broke into the home. Officers took
him the precinct and then gave him Miranda and thus obtained a statement.
- Issue: Does the failure to give Miranda taint subsequent admissions?
- HELD: in situations where there is a statement first then Miranda and then repeat
statements, those statements subsequent are based on if the statements were voluntary,
knowingly, and intelligently made
- Reasoning: they were voluntarily made by the D

- Missouri v. seibert: D was convicted of setting fire to a mobile home. Officers

interrogated D, no Miranda, and she confessed. Then the officers gave her Miranda, and
then asked her to restate what she said. ISSUE: is the second tainted y the first? HELD:
No taint but the statements are inadmissible. Reasoning: not freely and voluntarily
made under the 14th amendment.

14th Amendment: 5th amendment

(1) Was there coercive police behavior

a. By Force
b. Duress
c. Compelling another to confess

(2) Was the police behavior to elicit a response

a. Means: did the officer compel another to do something that they would normally
would not do
 i. Ex: A lot of police around
ii. Ex: Words
iii. Ex: suspect is placed in the room, and officers place the bloody shirt in
front of him and leave.

(3) Did it overcome a person free will

a. Voluntary: means: confession an act of the D free will absent from duress, force,
trick or threat of harm, then information is admissible in court

i. Spano: Dude that went to the bar, got beat up by the boxer, came back
and shot the boxer. Friend was a cop, and told him to give up. He wasn’t
confessing, until the officer got the friend and told the friend to convince
the D to confess. He did confessed. Issue: Was the confession freely and
voluntarily made? HELD: NO. Reasoning: it wasn’t voluntary because
the friend overcame his will. It wasn’t knowingly and intelligent
because of friend. The friend coerced him to elicit a response. And it
was against his free will.

ii. Arizona v. Fulminante: where the ex cop in jail told the D that he would
protect him if the D told the ex-cop about the death of the little girl. D
spilled. HELD: using the totality of the circumstances, the confession
was coerced by the promise, and thus inadmissible in court.

iii. Chavez v. Martinez: the 5th amendment right isn’t violated until the D is a
compelled witness against himself

b. Knowingly and intelligently made: Means: if the suspect hears the warnings
and UNDERSTANDS them, then answers the question in absence of the lawyer,
it would seem they did so knowingly and intelligently

Week 12
th
6 Amendment
- How it works: The 6th attaches in criminal proceedings (meaning: if you have a criminal
trial and the prosecution is convicting the you of a crime, and you have no lawyer, then
the proceeding is not equal, then you have the right to counsel.

o Massiah: dude that was arrested, and posted bail, went to the car, which was
wire tapped. Made statements in the car and it was used against him in the same
proceeding that he was arrested for. Statements that were made without the
presents of counsel. D argued that after he was indicted, violated his 6th
amendment right to counsel. HELD the statement were deliberately elicited from
him after he was indicted and in the absence of counsel.

STEP ONE
 - (1) Adversarial Judicial Proceeding (AJP)
o Attaches when there is some kind if criminal proceeding or when the courts get
involved. When the individual goes from being the suspect, to the accused.
 After indictment, then can raise a 6th amendment claim
 Arraigned before a judge
 Initial appearance
 Motions
 Trial, etc…

- (2) Police deliberately elicit an incriminating response

o When police intentionally do something to obtain a response from the D

• Brewer v. Williams: YMCA case and the officer gave the D a

Christian burial speech to elicit response. Issue: Was the
Christian burial speech in violation of his right to counsel?
HELD: More of a 5th and not his 6th but the statements were
inadmissible. Reasoning: he was arraigned. Then the officers
knew he was a religious person and took advantage of him and
told him the Christian burial speech. Therefore, the officers
statement by the officer was deliberate and elicit.

• Michigan v. Jackson: D was charged for participating for a wifes

plan to murder her husband. HELD:Waiver invalid because the
police initiated the conversation

STEP TWO

- WAIVER
- Overt interrogation
o Means: an explicit statement where the D intentionally relinquishes or abandons a
known right. Burden rests on the State
 (a) Voluntary
• Means: the action by a person whose will is not overcome by the
state. Burden is on the government showing that the D actually did
waive and how his will was not overcome

 (b) Knowingly and intelligently

• Means: if the suspect hears the warnings and UNDERSTANDS
them, then answers the question in absence of the lawyer, it would
seem they did so knowingly and intelligently
• D needs to be aware that they

 (c) No Police Coercion

 • Absent of force, duress

 (d) did not overcome the defendants will

- Offense Specific
o If a party has invoked their right to counsel, and the D admits to another crime,
not related to the crime he is being accused of, then that information can be
admissible against him in court.

 If he admits to crime X and he was charged with crime Y, then he can be

charged for crime X, without the right to counsel

- Close factual relation test

o Test finds different statutory offenses to be the same only when elements of one
offense, necessary include the elements of the other offense. (if prove greater,
have proved already the lesser included

• Ex- Crime A—elements are 1, 2 and 3. Crime B—elements are 1,

2. Crime C—elements are 1, 2, and 4. Crime A and C are not
equal thus not the same offense. B goes with both.

- For the exam: scenario: have a dude the has been arrested and has been to court, and we have
to discuss whether the D has a 5th amendment claim, 6th amendment claim, and 14th amendment
claim

Week 13

WHEN DOES A PERSON HAVE A RIGHT TO COUNSEL

The right to have appointed counsel

- any person that is haled into court, that cannot afford a lawyer be provided with one,
cannot be assured a fair trial if a party is not given counsel. ONLY WHEN
IMPRISONMENT INVOLVED, THEN YOU HAVE THE RIGHT TO COUNSEL.
Thus the 6th, incorporated by the 14th entitles an indignant the right to counsel.
o TEST
 Balance: Not having a lawyer v. Self representation

• Gideon v. Wainwright: the D broke and entered a pool room. The

D at trial requested for counsel, but the court denied him of that
RIGHT because they said that you appointed only when there is a
capitol arrest. D made his own opening statements and crossed
examined witnesses. HELD: if indignant, then they have the right
 to counsel. Its unfair because the balance is b/w him representing
himself, and the state, who are lawyers. Since there is no balance,
then unfair and in violation of his 6th and 14th amendment right to
counsel.

Bail hearings: YES, you have the right to counsel at bail hearings.

Providing a person with counsel on appeal

- if indigent, then have the right counsel at appeal UNLESS, the individual has already has
had their right to counsel
o Douglas
o Ross v. Mofit

o EXCEPTION
 After party has plead guilty to a crime, and after they have had their 1st
appeal and are appealing for the second time, they do not have the right to
counsel

Right to decide whether to have counsel—self representation

- Have the right to waive your right to counsel, and then have the right represent yourself
o Faretta

Competency to stand trial

- Godinez: Test
o If the D has both sufficient ability to consult with attorney to a reasonable degree,
then they have the capacity to plead guilty or waive

Effective counsel
- Strickland test a defendants whose lawyers has actually participated at trial, D has to
prove 2 things to have a 6th amendment claim
o (1) if the defendants counsel’s actions fell below the objective standard of
reasonableness
 Must show that the acts or omissions were unconstitutionally unreasonable

o (2) Based on the objectiveness, the defendant must show that but for the
counsel’s errors, the results would have been different.

14th AMENDMENT FOR 6TH AMENDMENTS

(1) Is there Coercive police behavior

a. By force
b. Duress
 c. By words
d. Actions
e. Gestures
f. Police presence

(2) Was the coercive behavior to elicit a response

a. Means: did the officer compel another to do something that they would normally
would not do
i. Ex: A lot of police around
ii. Ex: Words
iii. Ex: suspect is placed in the room, and officers place the bloody shirt in
front of him and leave.

(3) Did it overcome the individuals free will

a. Voluntary: means: confession an act of the D free will absent from duress, force,
trick or threat of harm, then information is admissible in court

b. Knowingly /intelligently
i. Means: if the suspect hears the warnings and UNDERSTANDS them, then
answers the question in absence of the lawyer, it would seem they did so
knowingly and intelligently

Investigations

(1) Physical evidence: with regard to 4th amendment analysis

a. DNA, hair, fingerprints

i. Is there an expectation of privacy issue when it comes to DNA?

1. NO, because you leave your fingerprints, hair everywhere.

a. If you go to the police station, and they give you a cup and
they get your fingerprints, then you don’t have an EOP

b. HOWEVER: if the officer asks you for your fingerprint,

DNA or hair, you can say no. then the officer will have to
obtain a warrant for that

b. Apply the 4th, 5th, 6th, and the 14th

i. Voluntary
ii. Knowingly and intelligently
iii. Absence of coercive behavior

(2) Line ups

a. Have the right to counsel to be present
 b. (1) Procedure must be credible (suggestive)
c. (2) Reliable: was it reasonable

i. 5,1’ white guy, with 6 other 5’1 white guys

ii. NON-Ex: 5 foot 1 inch white guy and have 6 other 7 foot African
American basketball players

(3) Voice exemplars

a. Means: purpose is to identify the voice. Officers can’t tell a person to make an
incriminating statement on the recording.
b. Have the right for counsel to be present

i. Non-Ex: “put your hands up”

ii. EX: “I killed her”

(4) Handwriting exemplars

a. Officer cannot tell a person to incriminate themselves
b. Have the right to have counsel present

(5) Photo array

a. Does a person have the right to have counsel present

b. (1) Procedure must be credible (suggestive)

c. (2) Reliable: was it reasonable

i. Line up of pictures, and officer cant give the victim a hint or suggest
anything the victim to pick a certain person over the other

(6) Line up v. Photo array

a. Line up: incapable to be recreated
b. Photo array: capable to be recreated

i. Procedure must be credible

ii. Procedure must be reliable

1. if each are missing, then it is per se unreasonable UNLESS:

if a party has been subject to photo/line up,
a. Independent source: Means—unless the D can be identified
by some other independent source (video camera, picture)

ALL OF THESE ARE GOVERNED BY THE 14TH AMENDMENT TO DO THE BALANCE

(1) ESSAY # 1—4TH AMENDMENT

(2) ESSAY # 2—5TH, 6TH AMENDMENT
a. BALANCE EACH WITH THE 14TH AMENDMENT