WEINER ON CRIMINAL PROCEDURE

Criminal Procedure
Spring 2001 Professor Kessler

I.

INTRODUCTION A. Constitutional Law aspects 1. The Court established Constitutional rules of criminal procedure a) Is the Court interpreting and applying the Constitution or using the Constitution as an excuse to concoct new laws? 2. When analyzing the propriety of Supreme Court decisions, do the Kessler 3 factor test and ask: a) Is this a matter of serious and important social concern? (1) If nothe need to apply fundamental Constitutional principles is minimal. b) Is there a problemeven if it is an important issue, is it not being handled adequately by coordinate branches of government (federal and state)? c) Is there Constitutional language that can be referred to that passes the laugh test? d) Do you like it?

II.

INCORPORATION DOCTRINE A. Introduction and History 1. The federal Constitution and the Bill of Rights. a) No Bill of Rightsoriginally, the federal government was seen as weak. b) The Bill of Rights did not mean much for 150 years because it only applied to the federal government activitythe Fourth Amendment was only violated if a federal agent broke down your door. (1) It didnt apply to local and state police. c) The Fourteenth Amendment with the equal protection and due process clauses was passed after the Civil War. 2. The Court used the incorporation doctrine via the due process clause to make all of the rights that developed under the 1st, 4th, 5th, and Sixth Amendments enforceable against state officials. a) There was a problem to be solvedthe way criminal charges were prosecuted.

WEINER ON CRIMINAL PROCEDURE b) Identical or similar constitutional language is found in the constitutions of almost every state. (1) Although the state courts had the opportunity to do so, they didnt do anything about police practices. B. Duncan v. Louisiana (1968)incorporation doctrine clarified 1. In Duncan, the Court held that the right to a jury trial is binding on the states for crimes with authorized sentences that exceed six months. 2. If a right enumerated in the Bill of Rights is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, it applies to the states via the due process clause of the Fourteenth Amendment. a) The reasoning was historically rooted in Powell v. Alabama (the Scottsboro Boys case) where the defendants had counsel but the lawyer only had 2 days to prepare for the trial. (1) In Powell, the Supreme Court said that the fundamental right of due process (fairness) was violated. 3. Fundamental judges dont accept the argument that due process means all the rights of the Bill of Rights. a) They feel that due process includes the most fundamental rightsthis may expand beyond the first eight. b) What is more significantthe specific rule or the general principle that applieshow do you argue what Jefferson would have thought about wiretaps? c) Justice Black was a total incorporationisthe felt that you cant pick and choose and must take the full 8 Amendments. d) The selectivists were Justices Stewart and Harlanthey felt that you can select among the first eight as to what to take. III. RETROACTIVITY AND THE APPLICATION OF CRIMINAL PROCEDURE DECISIONS A. Retroactivity 1. Retroactivity can mean several different things. The Supreme Court creates new rules when it interprets the Constitution in ways that havent been done before. a) Major issue is should the new rule apply to this case, where it didnt exist when the PD had done their actions? (1) No way for the PD to knowconduct occurred before anyone knew of the law. b) The next level of retroactivity is two cases where people were tried and convicted before the date of decision, but they have currently pending appeals.

WEINER ON CRIMINAL PROCEDURE c) The third level of retroactivity is to people who have already been arrested but not tried. d) The fourth and strictest level is that it only applies to cases that havent happened yetan entirely new rulethis is prospective. (1) What about those whose convictions are finalized and are doing jail time? B. Case Law 1. Payton v. N.Y.the new rule applies in the specific instant case under the fiction that as an interpretation of the Constitutionthis is and was the law. a) Harlan said, a long time ago if we do not resolve all cases on direct review in light of our best understanding of the Constitution, it is difficult to see why we should adjudicate cases at all. (1) Harlan is talking about people whose appeals are presently still pending. (2) Economic reasons on hiring lawyers for those who are in jail cost too much to let them re-litigate. (a) This is Harlans pragmatic reality. 2. Griffith v. Kentucky (1987). All new rules are applicable to those whose convictions are still pending on appeal. 3. For those already convicted, only rules that question the accuracy of their convictions may be applied. a) This applies to the fairness and accuracy of the fact-finding process. IV. REPRESENTATION AND COUNSEL-RELATED RIGHTS A. History 1. In Powell v. Alabama (Scottsboro Boys) (1932), five young black males were convicted of rape by an all white jury. They did not have a lawyer until the morning of the trial. a) The Court held that as a fundamental right of fairness and due process, defendants who cannot represent themselves are entitled to counsel at trial. (1) This decision is not linked to the Sixth Amendment applying to the state but rather due process. (2) This is based on the fairness portion of the testthe lack of counsel must make the trial unfair. (a) This was dependent on the complexity of the case + the defendants intelligence and education. 2. By the 1960s, the Warren Court was uncomfortable with this process of determining a defendants capacity to represent himself at trial.

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B. Todays Basic Right to Counsel 1. Gideon v. Wainright (1963). In Gideon, the defendant was a middle-aged man with numerous felony convictions who was convicted of breaking parking meters and stealing the quarters. There were eyewitnesses. He was unrepresented and tried his own case. a) In Gideon, the Court held that as a blanket rule, the Sixth Amendment applies to the states and all indigent defendants accused of a felony are entitled to assistance of counsel. (1) The causation issue emerges as well. (a) State argued that the constitutional violation did not cause the harmhe did as well as any lawyer would do. (b) Defense argued that counsel was so important that lack of it is a per se constitutional violation. b) With counsel, Gideon was acquitted on the second trial. 2. Argersinger v. Hamlin (1972). In this case, the defendant was accused of a misdemeanor but faced 6 months in jail. He demanded an attorney. a) The Court held that defendants have a right to counsel in all misdemeanor cases where jail might result. (1) This is more expensive for the statesmany more misdemeanors. (2) These cases were great for lawyerslegal aid explosion with DAs to match. 3. Scott v. Illinois (1979). Scott, with no record, appeared before a judge for shoplifting. Judge denied him counsel. He came back the following week and was fined $50 after pleading guilty. a) The Court held that for minor offenses, the actual sentence standard is applied and a defendant only has the right to counsel if he will actually be going to jail. (1) Once the judge denies the misdemeanor defendant the right to counsel, he cannot sentence him to jail time. b) This was for the purpose of limited resourceswhy waste time and money getting a lawyer for someone who is not going to go to jail? (1) Dissenters disagreeddiscussing the stigma of a criminal conviction. 4. Gagnon v. Scarpelli (1973). The Betts v. Brady (1942) standard of fairness and defendants capacity to represent himself is applicable to parole revocation hearingsa defendant is only entitled to counsel in parole revocation hearings if he cannot represent himself adequately. a) Most parole revocations based on D being convicted of something else or not showing up to meet the officer.

WEINER ON CRIMINAL PROCEDURE (1) Not detailed litigationwhat will a lawyer do to get a better deal for the client? C. Appeals 1. Griffith v. Illinois (1956). In 1955, Illinois stated that indigent defendants only get free transcripts on appeal if they are arguing that constitutional issues are raised. This was challenged. a) The Court held on any appeal as of right, indigent defendants are entitled to free transcripts. (1) Although appeals arent required, if you provide them you must conform to due process. b) Harlan dissentedcalled this not fundamental. 2. Douglas v. California (1963). The defendant got a free transcript on appeal but not a free attorney. State checked to see if there was an issue worth litigating before providing free attorneys for appeal. a) The Court held that defendants are entitled to counsel on the intermediate appeal as of right. 3. Ross v. Moffitt (1974). On discretionary appeals to state supreme courts, the defendant is not entitled to counsel. a) Further legal representation isnt really necessary when you already have a brief from the intermediate appeal. b) Defendants are not entitled to counsel for habeas corpus petitions, either. 4. Anders v. California (1967). What if the free appellate lawyer looks at the transcript and cant find a real issue, just frivolous ones? a) In Anders, the Court held that an Anders brief (accompanied by an explanatory letter to the client) arguing why there is no appealable issue from counsel satisfies the right to counsel. (1) N.Y.Anders brief is not permitted for sentencing, only substantive guilt or innocence. D. Critical Stageswhen the right to counsel attaches 1. There is no right to counsel in a grand jury proceeding. a) This is only an investigationno indictment has been brought yet and therefore there are no charges. 2. Coleman v. Alabama (1970). There is a right to counsel in a preliminary hearing. a) Preliminary hearings determine if there is probable cause to hold someone on bail before indictment. (1) Because information is brought out, thus it is a critical stage.

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3. A line-up is a critical stage. 4. Kirby v. Illinois (1972). A show-up is not a critical stage, therefore no right to counsel. 5. Generally, a step is a critical stage if the government has gone beyond investigating and is now building a case against a person. E. The right to effective assistance of counsel 1. What if a lawyer does a bad jobwhen is an attorney so deficient that he is not an attorney for satisfying the Sixth Amendment? a) Different doctrine than malpractice. b) Providing counsel comes first, then worry about effectiveness. c) Most people who are arrested get convicted, especially in smaller communities with more attention to specific cases. How do you prove ineffectiveness? (1) A conviction does not necessarily mean that the attorney is incompetent or ineffective. d) Try to identify effective objectivelythis is what a lawyer does: (1) Interview client. (2) Identify witnesses. (3) Know the law. e) But what if you put in the time and do every step, just badly? Trial law is an artthere are many strategic decisions that go into the subjectively skilled craft of trial law. f) We do know that if you never do an interview or investigation and therefore dont call the witness, that makes it less likely that it was a valid strategic decision. 2. Strickland v. Washington (1984). The defendant was charged with a bunch of murders and robberies. He pled guilty against the advice of counsel. There was still a sentencing hearingcapital cases are bifurcated and have sentencing hearings for mitigating and aggravating factors. At this hearing, Ds lawyers called no witnesses and he was sentenced to death. a) The lawyer did not talk to a psychiatrist or any identified witnesses. (1) He did not request a pre-sentence report. (2) Strickland made the motion for a new hearing based on ineffective counsel, forcing the lawyer to testify about his reasoning in a new decision. (a) Counsel explained that D lied to the judge in his plea allocution. Bringing out the information would have helpful stuff but also show D to be a liar.

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b) The Court held in Strickland that the Sixth Amendment is violated when: (1) Counsels performance is deficient; and (2) The deficient performance prejudiced the defensethe incompetence caused the loss. (3) The burden is on the D to prove ineffective assistance. (a) A presumption exists that assistance is effective. c) Professional strategic decisions are viewed at the time of the trial--if reasonable, there is no ineffective assistance of counsel. (1) A wrong decision is not necessarily ineffective. (2) An explanation of strategy that is reasonable enough to pass the laugh test will show that counsel was not constitutionally ineffective. 3. U.S. v. Cronic (1984). A young real estate attorney with no criminal background was assigned, over his protest, to represent a check-kiting mail fraud defendant. The government investigated the defendant over 4 years. The lawyer was given 25 days to prepare for trial. a) The court of appeals reversed the conviction, citing the time to prepare, the complexity of the case, and the lawyers inexperience. b) The Court reinstated the conviction, stating that the lack of time did not make the lawyer ineffective and there would be no change in the result. c) The Court stated that as a real estate lawyer, he has the necessary experience in dealing with the documents (rather than violence), and plenty of time to prepare because the P weeded out much of the unnecessary stuff. d) The court held that there is no per se rule on attorney incompetence both prongs must be satisfied as ineffectiveness alone does not create prejudice. 4. Morris v. Slappy (1983). The clients public defender, whom he liked, got sick. A continuance for that lawyer to return was denied. The replacement did an objectively effective job and got the jury to hang. a) The Court held that there is no right to a choice as to an appointed attorney or to a meaningful relationship between indigent client and the appointed attorney. 5. U.S. v. Kliti (2d Cir. 1998). A defendant has a Sixth Amendment right to be represented by counsel who does not have a conflict of interestif the court knows or reasonably should know that counsel has a conflict, the court has an obligation to determine whether or not a conflict exists. a) If the court determines that there is a potential or actual conflict, the court must disqualify the lawyer if the conflict is severe or, if a lesser

WEINER ON CRIMINAL PROCEDURE conflict, make sure the defendant knowingly and intelligently waives his right to conflict free representation. b) If the court determines that there is no conflict, and the defendant appeals on that ground, the defendant must demonstrate that the actual conflict adversely affected the lawyers performance or the potential conflict caused prejudice. c) Holloway v. Arkansas (1978). Joint representation of codefendants by one counsel is not a per se conflict, although it may be a conflict when the codefendants have conflicting interests. F. Effectiveness and Presenting the Defense 1. Geders v. U.S. (1976). One state had a rule that a client may not consult with counsel during the course of his cross-exam, even in during a prolonged recess. a) The Court held that prohibiting the defendant from consulting with counsel during recesses violates the right to effective assistance of counsel. 2. Brooks v. Tennessee (1972). A rule requiring the defendant to testify first or not at all was stricken. a) A defendant has the right to plan his defense, particularly with regard to testifying or remaining silent. 3. Herring v. New York (1975). A rule gave the court in a bench trial the power to deny defense counsel the opportunity for summation. the Court struck the statute as denying effective representation. a) This is form over substanceno one says that the judge has to listen. G. Self-Representation 1. Even though defendants shall not be denied the right to counsel, defendants to have the right of choicethey may defend themselves. a) In theory, this right to counsel implicitly includes the right to decide that you dont want it. b) This can be problematiccounsel is essential to a fair trial and defendants who represent themselves can make trials into circuses. c) The right to represent yourself is a conditional right. 2. Faretta v. California (1975). The defendant wanted to represent himself but it was apparent to the judge that the defendant did not knowingly waive counsel and really had no idea what he was doing. a) An individual may only waive the right to counsel and represent themselves if they can pass through a waiver process in which the judge considers the following factors: (1) Is defendant able/competent to represent himself? (2) Does D understand the charges and defenses?

WEINER ON CRIMINAL PROCEDURE (3) Does D have the educational background and intelligence to represent himself? b) This test is administered in detail through a full waiver allocution done by the judge. 3. Standby counsel is appointed to assist and consult with a self-representing D as necessary. Standby counsel also represents the D if self-representation is terminated. a) Often, standby counsel starts actively participating in the proceeding, through arguing motions and examining witnesses. (1) The defendant always retains control over: (a) Pleading guilty; (b) Whether or not to testify; (c) Whether or not to waive the right to a jury trial. b) This creates a hybrid counsel situationif the lawyer actually becomes the attorney on the case, when do they become not standby counsel but actual counsel. (1) This is an attack on the judges control over the trial. (2) The test is who, in the eyes of the jury, was in control of the defense? (a) This is determined on the basis of the totality of the circumstancesnot an objective standard. H. Counsel and Identifying Suspects 1. This section deals with problems with human perception, aggravated by memory, time. a) Many people will give different accounts of the same thing when they see it. (1) Perception is also negatively affected by racial, cultural, and experiential biases. (2) Another problem is suggestibilitywhat is appropriate to stimulate someones memory? b) This becomes a criminal procedure problem when the influencing is done by the state to identify the evidence needed to prosecute. (1) Complainant comes to PDone of the first questions is whatd the person look like? (a) The questioning process is often suggestive itself was he wearing a coat? Was his dark hair brown or black? (b) Trying to jog the witness memory like this is clearly suggestive. (2) Victims generally trust the policethis creates the trusted person aura that makes witnesses suggestible. (a) What the cop says may even make sense.

WEINER ON CRIMINAL PROCEDURE (b) What if the cop is biasedbias may definitely be unintentional as opposed to explicitly trying to frame someone. c) This all becomes a constitutional problem when counsel and related issues are considered. 2. U.S. v. Wade (1967). Wade raises the issue of whether or not an accused has a constitutional right to counsel during a line-up. In Wade, a bank robbery case, the suspect had already been indicted and officially charged with a crime. He was then put in a line-up for viewing by the bank employees. a) The Court determined that there is a right to counsel because the postcharge/post indictment line-up is a critical stage in the criminal prosecution. (1) The post-charge line-up is the equivalent of taking testimony it basically creates the testimony that will be used at the trial. b) What is the purpose of having the defense lawyer there? (1) The lawyer may be a fly on the wall and better able to crossexamine at trial because hes seen what happened. (a) He can see if theres any wavering or suggestion. (b) Instant recognition is much more likely to be correct! (2) The defense attorney can also act as a regulatormake sure the line-up is performed correctly. c) If the cops violate this, the line-up ID evidence will be excluded. (1) This is a good remedy because trial ID two years later becomes an old, potentially unreliable memorytherefore, unconvincing evidence at trial. (2) Per Stovall v. Denno, in-court identifications will only be excluded if the witness memory is so weak and contaminated through substantial suggestion as to have no independent base. 3. Kirby v. Illinois (1972). After someone is indicted, the only reason to have line-ups is to enhance testimony. Before a charge, the purpose behind identification is really to find a suspect and then make sure the right man has been arrested. a) Show-ups of is this the guy? are done all the time right after a crime on the scene. (1) This is in many ways a benefit to the suspecthe may be let go. (2) Requiring counsel may require holding someone until a lawyer can come, often overnight. (a) Thus, the application of rights is a mixed blessingit hurts those who will be identified but helps those who will be let go. b) The Court held that identification procedures during investigation and before charging/indictment are not critical stages and there is no right to counsel at them.

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4. U.S. v. Ash (1973). The defendant has no right to counsel at any photographic identification, regardless of whether it is done before or after formal charge. a) This is because everything that happened at an identification by photographic array can be accurately recreated at trial. b) This decision also recognizes limited legal resources. 5. Manson v. Brathwaite (1977). The defendant-appellant wanted a best evidence ruleif time permitted for a lineup or showup, they would need to be done as opposed to photosPD should do the least suggestive procedure possible. a) The Court refused this and held that because reliability is the linchpin, the defendant has only a right to a reliable identification procedure in light of the following indicia of accuracy: (1) The opportunity to view. (2) The degree of witness attention. (3) The accuracy of the description by the witness. (4) The witness level of certainty. (5) The time that has elapsed between the crime and the identification or confrontation. b) Evaluation of witness credibility is left to the scrutiny of trial and cross-examination. V. THE FIFTH AMENDMENT, GENERALLY A. Introduction and Applicability 1. The Fifth Amendment privilege against self-incrimination is that No person shall be compelled in any criminal case to be a witness against himself. a) The privilege has historical bases in the colonists revulsion to Cromwells Star Chamber practices of prosecuting political enemies who committed crimes against the state. b) The Star Chamber had no confrontation, no cross-examination, and compulsory testimony by the accusedyou had to explain. c) The Fifth Amendment privilege is intended to prevent forcing someone to make a choice in the cruel trilemma of self-accusation, perjury, or contempt. 2. Judge Friendly attacked the Fifth Amendment as against the American concept of communitycommunal problem resolution. a) He also calls it inconsistent with the accuracy of the jury verdictthe more information, the more likely that the verdict is accurate. b) So what is its pragmatic benefitare there situations in which the verdict is more likely to be accurate without the defendants testimony?

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WEINER ON CRIMINAL PROCEDURE 3. The two major pragmatic benefits of the Fifth Amendment, because defendants statements are an area where the degree of accuracy needs to be very high, are that it minimizes problems with: a) Miscommunication. (1) See My Cousin Vinnythe PD questioning shows what can happen with miscommunicationthe kid thought he was arrested for stealing tuna fish but was being interrogated by someone for murder. b) Cross-examinationa good cross-examiner can make a truthful person look like theyre lying. (1) Lawyers dont have to play fair. 4. Despite the existence of the cruel trilemma elsewhere, the Fifth Amendment privilege is limited to avoiding American criminal penalties. a) Boyd v. U.S. (1886), Counselman v. Hitchcock (1892). A person may assert the Fifth Amendment in civil cases in order to protect their criminal liability interests elsewhere and avoid testifying about potentially criminally damaging matters. b) U.S. v. Balsys (1998). There is no basis to plead the Fifth Amendment for avoiding foreign prosecutions. B. Compulsion by the Government 1. The Fifth Amendment protects only against self-incrimination compelled by the government. a) Earliest cases dealt with true compulsionthe PD beat suspects until they confessed. b) Compulsion is a persons will being overcome via physical means. (1) This is an issue of reliabilityif you torture someone long enough, theyll say what you want. (2) Prolonged and extensive interrogation also makes confessions and admissions unreliable, i.e., hot lights, 5 days. 2. Lefkowitz v. Turley (1973). In Lefkowitz, a New York statute required contractors to waive immunity or testify about contracts. Refusal would result in cancellation of existing contracts and denial of future contracts. a) A consequence that makes someone lose their job or suffer other economic sanctions is coercion and compulsiontherefore an invalid, unconstitutional waiver of the Fifth Amendment protection. (1) Harlan, J. felt that it shouldnt apply in a situation where someone has time to reflect and seek professional advice government cant remove difficult decisions from ones lifethis idea is accepted later.

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WEINER ON CRIMINAL PROCEDURE 3. Selective Service System v. Minn. Pub. Interest Research Group (1984). A suspect can be induced to talk through making benefits that he doesnt already have available to him, but not through imposition of penalties. C. Effect of Invoking the Privilege 1. Griffin v. California (1965). A prosecutor cannot comment on the defendants failure to testify and request an adverse inference in a criminal case. a) If prosecutor saysdefendant has not offered 1 fact to prove (1) If you actually mention the defendant or lack of testimony that is a comment. Just saying the case is uncontradicted is OK. b) U.S. v. Robinson (1988). If the defendant says he didnt get a chance to tell his side of the story, but didnt testifythen prosecutor can rebut that. (1) This is the invited response doctrine. 2. Baxter v. Palmigiano (1976). A party may comment on the oppositions failure to testify in a civil case. a) Fifth Amendment is meant to protect liberty, not financial interests.

3. Brogan v. U.S. (1998). Does the Fifth Amendment prohibit making false denials of committing a crime to the government perjury? a) There is no exculpatory no doctrinethe Fifth Amendment does not protect lying; its protections require silence. (1) People dont want to take the 5thit looks like youre hiding something and makes you a target. D. Businesses and the Act of Production Doctrine 1. Fisher v. U.S. (1976). In Fisher, an accountant worked on a companys tax records. The accountants gave the documents to the companys attorney. In a tax investigation, feds subpoenaed the companys records from the attorney. Company filed papers to quash the subpoenas, claiming Fifth Amendment. The feds also tried subpoenaing the accountants work records from the investigated party, as well. a) A witness cannot claim the privilege to protect someone elses interestsonly his own. (1) If a witness refuses to answer, the DA must seek an order from the judge to force him to testify. The judge has a factual hearing to determine whether or not the witness will incriminate himself. (2) Will the witness testimony be a link in a chain that could link him to criminal activity in an abstract criminal investigation? b) Once a person shares informationthat information is no longer his and the targets of the information, including accountants, cannot keep the information confidential.

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WEINER ON CRIMINAL PROCEDURE (1) Better off with an attorney-client privilege relationship, if CPA is a lawyer, too. (a) So long as you didnt waive the privilege by sharing the information with non-privileged peopleyou cant resanctify information. c) Also, the Fifth Amendment is not a right of privacyit is only a right not to testify. Privacy issues and subpoena of documents arise under the Fourth Amendment. (1) Voluntarily written documents dont get Fifth Amendment protection. (2) Personal diaries do not get Fifth Amendment protection. (a) NY gives more protection to diaries but not to personal calendars. (b) Conceptually, once you write it down, its no longer subject to the Fifth Amendment. d) Although incriminating statements within the documents themselves are not protected, the act of producing the documents is protected because it may be testimonial and incriminatory. 2. Braswell v. U.S. (1988). Under the act of production doctrine, you do not have to produce records if the act of producing them is incriminatory. a) The act of production shows your knowledge or control of the documents. b) The act of production doctrine does not apply to documents already known to exist, such as tax records. (1) It applies to strange documents. c) The doctrine also doesnt apply if the records are found during a warranted search or they come from attorney/CPA. (1) Attorney-created documents are work products and therefore privileged. (2) If the content of the document is incriminating in itself, then the act of production doctrine doesnt apply. d) Once someone is able to take the 5th under act of production, give them use immunity as to the act of production in order to get the documents. e) The Fifth Amendment does not apply to partnerships or corporations, only to individuals. 3. Shapiro v. U.S. (1948). D refused to submit records that were required to be kept under the Emergency Price Control Act. The Court compelled production of these records. a) Even if the personal records are not voluntarily prepared, the Fifth Amendment does not protect the contents or act of production of records that are required to be kept for a legitimate administrative purpose that is not focused solely on those inherently suspect of criminal activity.

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WEINER ON CRIMINAL PROCEDURE 4. Marchetti v. U.S. (1968). Tax returns require people to report how much they make from gambling. Marchetti was convicted of failing to register and pay a tax for accepting wagers. He said that he refused to register because it would force him to incriminate himself for illegal gambling. a) The Court distinguished Shapiro and held that when personal documents do not have a public character, are not of any area that is essentially non-criminal and regulatory, and are not required by law to be customarily kept, they are protected by the Fifth Amendment. E. What is encompassed in the act of testifying? 1. Schmerber v. California (1966). In this DWI case, the D refused to consent to a blood test. It was taken anyway and admitted into evidence. He argued that this violated his Fifth Amendment privilege. a) Only the thoughts and the contents of a persons mind are protected by the privilegephysical evidence is not protected. b) You can be compelled to give voice/handwriting exemplars and DNA samples without violating the Fifth Amendmentthese are identificatory acts, not testimonial acts. (1) This is similar to the booking questions exception to Mirandaidentificatory questions (where do you live) rather than incriminatory. 2. Penn. v. Muniz (1990). PD asked a DWI suspect his Sixth birthday. He got confused and couldnt give an answer, was slurring. D claimed that his Fifth Amendment rights were violated by the Sixth birthday question. a) Although the quality of someones speech is physical and not testimonial information, the Sixth birthday question was held to be improper under the Fifth Amendment because it asked the defendant for a response requiring him to communicate an express or implied assertion of fact or belief. 3. California v. Byers (1971). In this case, the constitutionality of Californias hit and run statute that made leaving the scene of accident without leaving information unconstitutional under the Fifth Amendment. a) The Court held that mandatory accident reporting statutes are constitutional under the Fifth Amendmentonly identificatory information is required. F. Immunity -is a violation without an injury. 1. The idea of immunity is that in exchange for the government not prosecuting them, you will give them information. a) Immunity kind of eliminates coercionit compels the person to testify because there is no longer a threat of testifying against yourself

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WEINER ON CRIMINAL PROCEDURE 2. Immunity is a creature of statute. These statutes prescribe who can issue it. a) It is a statutory right and has to be done through a formal process. There are two kinds of immunity: 1) Transactional immunity a. means that the government will never prosecuting you for any crime arising out of the transaction of which you testified. (1) This is not crime-specific. If you testify about a bank robbery, you cant be charged if it turns out later that the getaway car was stolen. (2) The answer must be rationally related to the question. (3) Its a great deal for D, but not the DA. 2) Use immunity a. prevents the use of the specific statements or testimony given against the witness. a. The prosecutor cant use this testimony in any waynot even to develop leads to find other witnesses to testify against you. ii. Kastigar v. U.S. (1972). In Kastigar, the Court held that direct use and derivative use (find other witnesses) immunity is exactly the level of protection that the Fifth Amendment requires. iii. In subsequent cases, the prosecutor must set up a paper wall to isolate this testimony from any case against you. They cannot use leads stemming from what you said against you, either. a. The prosecutor needs to build the case against you first, and then get your testimony. Structurally, if the date of your testimony is after the date of the incriminating statements against you, proves this that the immunized testimony did not serve to incriminate you. iv. U.S. v. North (D.C. Cir. 1990). North was granted immunity by Congress to testify about the Iran-Contra scandal there. The independent counsel was not exposed to and did not use the testimony at trial. The ICs documentary evidence was sealed before North testified before Congress. However, many of the ICs witnesses at Norths trial had seen his testimony on their own. The D.C. Circuit held that the rule of Kastigars use immunity is violated when other prosecution witnesses are tainted in any way by exposure to immunized, compelled testimony, even if there is no conscious government involvement in the exposure. v. New Jersey v. Portash (1979) pg 613. Immunized testimony from a witness may not be used in a subsequent trial against him for impeachment purposes.

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vi. United States v. Apfelbaum (1980). If an immunized witness lies while giving testimony, evidence of that lying can be used to subsequently prosecute the witness for perjury or obstruction of justice.

3) POLICE INTERROGATIONS AND THE INTERSECTION OF THE 5TH & SIXTH AMENDMENTS 2-4-02 HYPO- drug dealer-pending indictment-sold a kilo-speaks to an undercover agent-can the statement be used against him? No. b/c this violates the right to counsel, 6th A. this intersects with the investigation of a crime and the interrogation of the crime. HYPO- major drug dealer-under cop is wired and has the conversation re: drugs. The above drug dealer is there as well. The government can use the statement by the first drug dealer because the govt did not plan to interrogate him. See Massiah, and Moulten. HYPO- what if the cop was sent out to interrogate Flema and Flema makes comments re pending drug sales that he has not been charge with. Those statements can be used because he has not been charged for those cases yet. a. The deliberately elicit rule i. Massiah v. U.S. (1964). Massiah has already been indicted for drug sales. He also already has a lawyer. While out on bail, he talked to his friend/accomplice in a car, who has, unbeknownst to Massiah, agreed to cooperate with the prosecutor. Massiah confesses to the charged offense and plans for future crimes. The friend/informant was then called to testify about the confession, which was transmitted by radios to detectives. The Massiah rule states that in the absence of counsel, the prosecution may not deliberately elicit statements from a defendant about the offense for which he has already been chargedpending cases. a. The right to counsel is crime specific and attaches in specific, pending cases. However, the PD may continue to surreptitiously investigate crimes that havent yet occurred or been charged. Trial game cannot be interrupted, the pretrial/precharging game can be interrupted. ii. The Massiah scenario doesnt happen most of the timemost criminals arent so important that formal investigation continues after indictment. However, cops in jail talk to defendants in jail all the time. b. Proper interactions between prisoners and the government

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i. Brewer v. Williams (1977). Williams recently escaped from a mental hospital. He is the focus in the investigation of a murdered little girl. He was arrested for the murderbut the body hadnt been found yet. Williams was a religious man and liked to be called Rev. He already had a lawyer and needed to be transported from a small town lockup to the county seat. He was driven a long distance by two cops, including a sergeant. On the way, the cops told him to remember what his attorney said while he visited with them on the ride. En-route, the officers had the famous Christian burial conversation with each other. Williams then interrupted them and told them to pull overhe wanted to show them where the body was. The Court extended the scope of Massiah to the custody setting and held that since he had already asserted his right to counsel, the colloquoy between the officers was intended to deliberately elicit incriminating statements from him, therefore violating the defendants Sixth Amendment rights. a. The court focused on the fact that Williams was religious and this would definitely make him volunteer information. However this case could have been decided the other way b/c there was a reminder to listen to what the cops said. Henry case- defendant confesses to an informant who elicited the confession why he was in jail. This is in violation of the Massiah rule. HYPO- defendant confesses to a regular person who elicited the confession why he was in jail. the court said that this was not a violation of the Massiah rule. ii. U.S. v. Henry (1980). In Henry, Nichols is in a cell with Henry. He is a paid govt informant. Henry made admissions to Nichols. Henry moved to suppress Nichols testimony under Brewer and Massiah. Govt argued implied noticereasonable people know not to talk in jail because there are informants everywhere. The Court held that conversations with jailhouse informants are deliberately elicited by the government when they are started or actively continued by the informant. HYPO- Defendant confesses to an informant who did not elicit the confession why he was in jail. This is not a violation of the Massiah rule pursuant to Wilson. iii. Kuhlmann v. Wilson (1986). Here the informant said nothing and made no effort to get statements. In Henry, there was an actual conversation. Here, the informant was an ear rather than a voice. When the defendant volunteers information without being asked in any way to an informant, those statements may be used. a. The informant must be no more than a listening post.

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iv. U.S. v. Watson (D.C. Cir. 1990). An informant is only an informant when he has already made a deal and has a pending arrangement with the government. Agency principles at work herea relationship is needed so the government can eliminate improper conduct. This is a limitation on constitutional rightsby limiting what a government action is. Basically, if someone spontaneously breaks into your house and steals your papers, turns them over to the government for prosecuting you for tax evasion, then the government did nothing unconstitutional. v. Maine v. Moulton (1985). Two codefendants A and B are charged with theft. A then told the PD that B had spoken of killing a key witness. A cooperated and was wired when he met B. A led B into making statements about the plans, as well as their pending charges and other thefts. The statements were used at trial. The Court held that although the police may use undercovers to investigate other crimes not already charged, statements obtained from a defendant about his pending charges obtained in the course of investigating other crimes may not be used against him. c. Waivers of Sixth Amendment Protections i. In a custodial interrogation, once you ask for counsel and counsel has been retained, the PD cannot ask you any more questionsunless you waive. ii. Patterson v. Illinois (1988). D was indicted, received the Miranda warnings, signed a waiver form, and confessed. He had never invoked the right to counsel. The Court held that absent coercion or surreptitious PD tactics, the Miranda warnings are sufficient to create a knowing and voluntary waiver of the right to have counsel present during post-indictment questioning. iii. Michigan v. Jackson (1986). D formally requested and was given counsel at his arraignment. Later, D was interrogated by PD about the crime for which he had been charged. Although he did not initiate the contact, D signed a waiver form and confessed to the crime. The Court held that a defendant is only deemed to have waived his Sixth Amendment right to counsel if he initiates a later conversation and then knowingly and voluntarily waives his rights. a. Govt impropriety does not exist here. However, lower courts interpreting Jackson have consistently held that the protection of Jackson requires that the defendant have

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WEINER ON CRIMINAL PROCEDURE earlier made some kind of positive assertion that he will only deal with police through counsel. iv. McNeil v. Wisconsin (1991). D had been charged with armed robbery and had invoked his right to counsel at the initial appearance. Subsequently, PD interviewed him about another robbery/murder committed elsewhere in the state. He was given warnings, waived his rights, and confessed to those crimes. The Court held that the right to counsel is offense specificeven if you have counsel for one offense, you may still be questioned about unrelated offenses without any question about the voluntariness of the waiver under Michigan v. Jackson. d. Pre-charging interrogations and confessions in a custodial setting i. Brown v. Mississippi (1936). The PD beat confessions out of suspects before they were charged. The confessions elicited were to be used through cops testimony. Compelled testimony is pragmatically unreliable. a. Although technically not testimony if not at trial, a coerced basis for anything is unreliable. b. Unreliability is extremely narrow. Statements and confessions that are involuntarily obtained under the totality of the circumstances are deemed inherently unreliable and unconstitutional under the due process clause. There are many definitional problems with involuntarywhat kind of conduct creates involuntary confessions. a. Food deprivation, sleep deprivation, psychological torture, and 46 hour interrogations will lead to per se involuntary confessions. ii. Spano v. N.Y. (1959) pg 622. Ds old friend was a cop. D was arrested. Cop friend told him how bad things would be if D didnt talk. The friend exploited their relationship as the cop learned about his involvement in a post-bar fight shooting. The D asked several times for his lawyer, but this request was denied. After several hours of questioning, D confessed and took the PD to find the bridge from which he had thrown the murder weapon. The Spano Court held that under the due process standard, the defendants confession was involuntary due to the extreme circumstances and psychological factors of the interview. 1. use the totality of the circumstances test. iii. Florida v. Cayward (Fla. App. 1989). During an interrogation, the PD can lie to you about the strength of their case but may not fraudulently create documents to bolster their lie to you. This is because documents are generally perceived to be true.

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iv. Arizona v. Fulminante (1991). D is in jail on charges of abusing/murdering his stepdaughter. D is worried about violence from other inmates. Mr. Big, a paid informant for the FBI, then said hell protect D from other inmates who dont like child killers. Mr. Big then rats him out to the PD. The Court held that Ds mere fears of violence from others created pressure that made his confession involuntary. v. Colorado v. Connelly (1986). D approached an officer, stated that he had murdered someone, and wanted to talk about it. Officer gave him Miranda warnings. D stated that he understood his rightsa detective then came and repeated the warnings. D then confessed to killing a girl. The next morning D looked disoriented and stated that voices made him confess. D was later found competent to stand trial. The Court held that the focus in determining whether or not a confession is voluntary is on the conduct of the PD, not on the suspects state of mind or personal characteristicsthere must be coercive police conduct! 4) THE MIRANDA JURISPRUDENCE Who benefits more the cops or defendants List exception to mirandas applicability. a. Introduction and Basic Miranda Doctrine i. Miranda only applies to custodial interrogation settingsthere must be custody. ii. Miranda v. Arizona (1966). Confessions are not admissible and therefore questioning shall not begin unless there is a knowing waiver of the rights. In order for a knowing waiver of the rights to exist, the Miranda procedure must be followed: The defendant/suspect must be warned: ALL FOUR MUST BE GIVEN. 1. You have the right to remain silent (5A). 2. Anything you say can and will be used against you in a court of law (5A). 3. You have the right to an attorney (6A). 4. If you cant afford an attorney, we will provide one for you (6A). Miranda demonstrates the Courts commitment to education as a leveler. a. You have the right to remain silent. b. The intellectual underpinning of the decision is a knowing waiver of the rightswithout being informed, there is no way to determine if a suspect knowingly waived his rights.

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WEINER ON CRIMINAL PROCEDURE c) The public has become educated about their Miranda rights via TV cop shows. iii. Miranda only applies to custodial interrogations by the PD, because custodial interrogation is considered a critical stage in the prosecution. This is because the devastating compulsory effect of custodial status. For the courts, that a defendant was read his rights creates a presumption of voluntariness if the suspect talks to the PD. a. Voluntariness became standardized. i. Issues about custodial or interrogation remain. ii. Sounded good for defendants but really was good for PDmade voluntariness virtually presumed. iv. Dickerson v. United States (2000). Miranda warnings are not in themselves constitutional rights but are a prophylactic measure for enforcement of rightshowever, the reading of the rights is constitutionally mandated. Dickerson dealt with the Omnibus Crime Bill that modified Mirandaa statute not enforced until 1998. a. The 4th Cir. called the statute valid legislation although the Court reversed, holding that Congress does not have the authority to override a constitutional pronouncement. v. The Fifth Amendment requires that confessions obtained in violation of Miranda be excluded. Some see this rule as literally from the Fifth Amendmentyou cant allow coerced information to be used to force someone to testify against himself. a. Exclusion is the only remedy that can prevent a constitutional violation from taking place. i. Also, exclusion is a deterrent to improper police conduct. vi. There is a new Supreme Court take on Miranda. Initial arrest for a robbery (counsel assigned for robbery). D was released on bail while being investigated for felony murder from the same transaction/occurrence. He is then arrested for the felony murder. The robbery lawyer was not contacted by the PD. Same officers but different charge. He has counselyou cant interrogate someone without counsel unless D initiates conversation. The Court held Miranda Fifth Amendment rights are custody specificonce he is released once and arrested again on a different charge, the process starts over for Miranda purposes.

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WEINER ON CRIMINAL PROCEDURE The Sixth amendment right known as crime specific is chargespecific. a. D was only charged with the robbery, therefore, he only had counsel for the purpose of the robbery, even though it was from the same event. b. Exceptions to and Ways Around Miranda i. Harris v. N.Y. (1971). D confessed without being given the Miranda warning. The confession was excluded. Then, the defendant testified and said the exact opposite of what he told the PD. Can his Miranda-violative statement be used to impeach him? The Court held that statements obtained in violation of Miranda may be used to impeach a defendant-witnesss credibility with regard to a statement that he has made, so long as those statements are not themselves involuntary/coerced by the PD (Mincey v. Arizona). a. This will not reduce the deterrent effectDA can only use the statement if the D testifies, which doesnt often happen. i. Many cops dont know or care what happens to cases after the arrest, anyway. Per Oregon v. Hass, the prosecutor may impeach the witness on cross- examination, even if the inculpatory statements are outside the scope of direct. Miranda-violative statements may only be used to impeach a defendant, not a witness. Pre-arrest, failure to come forward with a statement can be used to impeach witnesses and defendants because the failure is inconsistent with certain factual defenses, such as self-defense. ii. Michigan v. Tucker (1974). D was arrested for rape but was given incomplete Miranda warnings. He then told PD that he was with his friend at the time of the rape. PD went to see the friend who gave information that inculpated D. Despite fruit of the poisonous tree arguments, a witness may testify even if PD gained the lead to that witness via a Mirandaviolative statement by a defendant. a. Per most circuits, this applies to tangible evidence as well. iii. Oregon v. Elstad (1985). PD are investigating a burglary. D is arrested and questioned but did not receive his Miranda rights. He confessed. An hour later, he was given the Miranda warnings, after which he reconfessed. Only the second statement was offered at trial, but the state supreme court reversed the conviction, holding that the cat out of the bag after the first improperly obtained confession.

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WEINER ON CRIMINAL PROCEDURE The Court held that even if a defendant has voluntarily confessed once in violation of Miranda, if they are subsequently warned (knowledge = power) and then confess again, the second confession may be used in court because the taint has been cleansed by the warning. a. Elstad is a prescription for how to violate Miranda. b. Kessler says that fortunately, most cops dont really interrogate suspects. There is a circuit split on whether or not the second statement is admissible if made immediately after the first, or if some time must elapse between the two statements. N.Y.: Per Bethea, as a matter of state constitutional law, Elstad doesnt applyonce Miranda defective, always Miranda defective in N.Y. iv. New York v. Quarles (1984). A robbery is in progress at a crowded supermarket. Cops swoop in. They handcuff D and asked: wheres the gun? D points to it. The cops retrieved the gun. After doing this, they read D his Miranda rights. D argued that the gun question was violative of Miranda and the gun should therefore be suppressed. The prosecutor argued that there was an emergency and a threat to the safety of customers in the store because of a gun floating around. The Court bought thisin a public safety emergency, Miranda warnings are unnecessary. a. This also applied to a cop searching a drug dealer when he asked the dealer do you have any needles on you? v. The booking questions exception has been developed for name, address, etc. Questions of information needed for routine booking are permissible without Miranda warnings. a. A booking question for identificatory information is not testimonial within the scope of the Fifth Amendment therefore Miranda does not apply. b. The police can mess this up, such is in Muniz (the Sixth Birthday DWI case)however, it remains clearly appropriate to ask identificatory information, including DOB. i. Crime stats are kept by DOB. c. What is custody? i. As custody = domination + control, formal arrest automatically creates a custodial interrogation situation. What if 4 officers surround someone and ask, can we talk to you? a. When there is no formal arrestso not automatic Miranda.

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ii. Stansbury v. California (1994). D was questioned in a police station, initially as a witness, about a murder. D gave incriminating information to several questions. At this point, he was read his Miranda rights. Was he in custody and therefore were his initial statements obtained in violation of Miranda? The Court utilized an objective test and held that if a reasonable person in the Ds position would feels that he is not free to leave, then it is a custodial interrogation for the purposes of Miranda. a. The officers beliefs are not determinative. i. To get away with this, PO should not come with a whole bunch of backupmake it look 1 on 1. b. This rule comes with the Fifth Amendmentintended to address peoples fears. c. This is an issue of fact that has created many cases about what is a custodial settingyou can even tell someone they can leave but it is still custody. iii. Beckwith v. United States (1976). D was not in custody when the IRS knocked on his house door and asked to talk to him about his taxes. If you say no, then you get audited. Is a non-custodial pressure = to a custodial pressure, triggering the Miranda requirement: The Court held that IRS interrogations in the home are not the coercive atmosphere that is subject to Miranda. iv. Oregon v. Mathiason (1977). A cop called D on the phone, asked to talk to him, offered to come to the house/job, or let the man come down to station. D went to station. No Miranda warnings were given. D then gave a confession to a burglary and was actually then permitted to go home. After D was later arrested and charged, the statement was used against him. Was this conversation at the police station a custodial interrogation? The Court held that even when an interrogation is conducted in the police station, a person is not in custody for Miranda purposes when he went to station voluntarily and is free to go at any time. v. Minnesota v. Murphy (1984). Court held that parole is a privilege therefore, rights not violated when parolee questioned by probation officers and a Miranda warning is not required. vi. Berkemer v. McCarty (1984). Terry stops are brief stop and frisk detentions for interrogation. The problem is that Miranda warnings are intended to keep suspects quiet. This frustrates the purpose of the Terry stop. Is a Terry stop custody for Miranda purposes? The Court held that Terry stop status is not custodial status for Miranda purposes.

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WEINER ON CRIMINAL PROCEDURE a. Terry stops are brief in duration and usually publicthey lack coercive isolation. b. The Court went with Terry for purposes of promoting law and orderthe danger addressed by Miranda is the fear of custodial interrogationWarren left open other methods. i. The Terry stop is an alternative method of investigationencourage stops for purposes of questioning. d. What is interrogation? i. Rhode Island v. Innis (1980). D was arrested for murder. The PD read him the Miranda warnings. D stated that he understood his rights and wished to speak with a lawyer. The murder weapon had still not been found. On the way to the police station, the officers in the car started talking about how terrible it would be if the handicapped children at a nearby school found the gun. D then interrupted the conversation and told the PD to turn around so that he could show them where the gun was. Was the D interrogated in violation of his right to remain silent until he spoke to a lawyer? The Court held that interrogation can be conduct, oral questions, or written questionsit is [something] that the police know or should know is reasonably likely to elicit an incriminating response from the suspect. a. The focus is on the techniques impact on the reasonable person in the suspects position, not on the PDs intent. i. This focus on the suspect avoids raising fact issues about what the cops intended to do in a variety of situations. b. However, the Court also found that the officers conduct here was not an interrogation under that standardthere was no way for them to know or should know that D would react how he did to the handicapped schoolkids discussion. ii. Edwards v. Arizona (1981). Interrogation may include confronting the suspect with incriminating evidence. Be smart here as an officer, mutter the Miranda warnings. Direct questions are definitely interrogation. iii. The PD are permitted to explain real world significance of situations, if true, e.g., We have to go talk to your wife and daughter about his now. The first guy to talk often gets the best deal. Then, after explaining, the PD can ask again if he wants to waive.

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WEINER ON CRIMINAL PROCEDURE e. Waivers of the Miranda rights i. General waiver issues are: Did D expressly waive his rights? Did D know and understand his rights? If not explicitly, was that waiver implicit? a. Be tricky by reading Miranda, can I ask you some questions, then asking innocuous booking questions and then going right into crime questions. Was waiver voluntary and not coerced? Absent corroboration for D, cops tend to win credibility issues Ds have more motive to lie. ii. U.S. v. Garibay (9th Cir. 1998) A borderline retarded D primarily spoke Spanish and agreed to waive his Miranda rights that were read only in English. To make a knowing waiver, a defendant must actually understand the rightstherefore, a defendant who cannot understand the language (foreigner or disabled) cannot make a knowing waiver of the Miranda rights. This standard requiring actual understanding by the D differs from the same Connelly voluntariness standard that requires actual PD coercion. iii. Connecticut v. Barrett (1987). D received Miranda warnings and signed a form indicating that he would talk about the sexual assault being investigated but would not sign anything in writing about it. The Court held that defendants may make knowing and voluntary conditional waivers of Miranda rights. a. Ignorance does not vitiatevoluntariness [of a waiver]. The Ds lawyer unsuccessfully argued that it was not a knowing waiver because the D mistakenly thought that if he didnt sign, the statement could not be used against him. iv. Colorado v. Spring (1987). D was arrested in Missouri for attempting to sell stolen firearms. He was given warnings and signed a waiver form in Missouri. He was then questioned about a shooting in Colorado, which he then confessed to. D was not specifically warned about the Colorado questioning. Can D knowingly waive his rights if he doesnt know what hes charged with? The Court held that a defendant does not need to know what hes specifically charged with in order to make a knowing waiverthe content of the warnings protect the defendants privilege against self-incrimination enough.

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WEINER ON CRIMINAL PROCEDURE a. Knowledge of the conversations subject matter is not relevant to the determination of whether or not a defendants waiver is knowing and voluntary. v. Moran v. Burbine (1986). D is given his Miranda warnings and signs a waiver, after which he confesses to murder. He never requested an attorney during the interrogation, which occurred prior to arraignment. D is not told that his sister hired a lawyer for him, and that lawyer doesnt want him to talk. D does know his Miranda rights. Can a suspect validly waive his rights if he does not know that an attorney is trying to reach him? The Court held that when a D knows his rights and was protected/empowered by Miranda, that a lawyer is trying to reach him is irrelevant to the waiver decision. a. D is only entitled to know and understand the scope of the rights contained in the Miranda warning. The police are not required to tell a suspect that a lawyer is trying to reach him. f. Invocation of Miranda rights i. Is there a distinction between 5th and SixthI want to talk to a lawyer does not necessarily mean I dont want to answer any more questions. What about other types of invocation other than expressI want to talk to my parole officer, etc. a. Court held that parole officer is a state agent and therefore not a protected entity under the Sixth amendment. b. Juvenile (< 16 in N.Y.) gets to talk to parent. ii. Michigan v. Mosley (1975) D was arrested and read his rights. He refused to talk to cops. A little while later, different cops come in, re-Mirandize him, and ask to talk about a different offense. Are Miranda rights arrestspecific (for that custody) or crime-specific (for that charge)? The Fifth Amendment right is crime specificD is empowered to talk about one crime rather than another, absent coercion. The right to remain silent shall be scrupulously honored by the policethe cooling-off period before a second questioning is a key factor. a. Different cops cant ask you about the same crime. b. Also, the same cops cant ask you about a different crime. However, the Sixth Amendment right to counsel is custody specificonce invoked, PD cant ask anything without getting D a lawyer. iii. If enough time elapses, lower courts permit someone to be re-warned and questioned again.

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iv. Davis v. United States (1994). When D says something ambiguous like I dont got nothing to say or I dont know if I should answer any more questionsis that an invocation of the Fifth Amendment right? Davis dealt with an ambiguous invocation of the right to counsel. In Davis, the Court held that the invocation of the right to counsel must be clear and unequivocal before the police are required to cease questioning. The law of the Circuits indicates that the invocation of the right to remain silent must also be clear and unequivocal before the police are required to cease questioning. As a CYA movethe smart cop rewarns him after an ambiguous invocation, then stops if it happens again. v. Edwards v. Arizona (1981). D was arrested for robbery and murder. He was brought to the PD station and read his Miranda rights. Questioning then occurred and D asked for a lawyer. The questioning then stopped. The next morning, he was questioned again and was threatened with a tape of an accomplice. The Court held that this was not a valid waiver of his right to counsel. When a suspect requests counsel, all questioning must cease until he has an opportunity to consult with that lawyer, unless the suspect himself initiates further communications with the police. Response to police-initiated questioning is not a waiver. vi. Oregon v. Bradshaw (1983). PD were investigating a fatal MVA. D was asked and voluntarily came to the police station. He was arrested for providing alcohol to the underage driver. When an officer suggested that the D may have been driving the truck at the time of the MVA, the D refused to answer any more questions and demanded a lawyer. Questioning stopped and D was transported to the jail. On the way, he asked whats going to happen to me now? He then took, at the officers suggestion, a lie detector test the next day. He was given fresh warnings before the test. He was then convicted of manslaughter. The Court held that Edwards was not violated because the D had initiated the conversation. Two step test for initation: a. Bright line safeguard of suspect initiationstatements indicating that the suspect desires a generalized discussion relating directly or indirectly to the investigation; and i. Initiation statements cannot be incidental to custody, such as bathroom requests, etc. b. The totality of the circumstances must indicate that D made a knowing and voluntary waiver. i. Shown with fresh warnings and voluntary waiver.

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WEINER ON CRIMINAL PROCEDURE If D asks cop for advicehe should be safe and re-Mirandize the suspect. vii. New York: New York has the indelible right to counsel. In New York, once asked for, the right to counsel cannot be waived without that counsel present. This also applies if the PD investigating case # 2 knows that the suspect has a lawyer for case # 1. viii. Arizona v. Roberson (1988). D is arrested at the scene of a burglary. He invoked the right to counsel before answering any questions. He remained in custody. A few days later, an officer who was unaware of this questioned D about a different burglary. The second officer gave him the warnings before D spoke. and taken to court. At court, he asks for counsel. He is taken back and re-questionedhe talks. The Miranda right to counsel is not offense-specific; once invoked, the police may not question the defendant about any other crime. ix. McNeil v. Wisconsin (1991). D was charged with robbery and invoked his right to counsel in court at the initial appearance. He was then questioned after the hearing by the PD with regard to other crimes. He waived his Miranda rights and confessed to these other crimes. He then sought to suppress this confession. The Court upheld the conviction and held that there is a difference between the Miranda right to counsel (for interrogation) and the Sixth Amendment right to counsel (for court)the Sixth Amendment right is offense-specific and is not relevant to questioning. Here, the Court saw that the D invoked his rights to counsel for the court appearances, not the non-offense specific Edwards right under Miranda. x. Minnick v. Mississippi (1990). D invokes right to counsel. He confers. After lawyer leaves, can PD approach the suspect and ask if he wants to talk with them? The Court held that the protection of Edwards continues even after the suspect has consulted with an attorneyonce counsel is involved, further police-initiated interrogation without counsel present is forbidden. A single consultation with an attorney is not enough to protect a D from police harassment. xi. Hoffa v. U.S. An informant works for the government. In a jury tampering trial, Hoffa thinks hes a friend and talks to him about a lot, also takes him into attorney-client meetings. Hoffa based his claim on an intrusion of attorney-client confidentiality.

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WEINER ON CRIMINAL PROCEDURE Miranda does not protect defendants from misplaced confidences. This is neither a Sixth Amendment issue (attorney client privilege blown with 3rd party) nor a Massiah case because different charges were pending. Having a government informant in a meeting is not a per se Sixth Amendment violationD must instead prove that lawyer-client information is communicated. a. Impossible for D to provedependent on prosecutors. b. This rule is intended to protect the safety of informants who cant refuse to go to meetings where they are supposedly co-defendants.

xii. Nix v. Whiteside (1986). The attorney learned a new story from D about murder victim having knife. The attorney says why didnt you tell me this before? If you testify to this, Ill tell court youre committing perjury. D doesnt testify, states on appeal that attorney coerced him into silence, thus violating Fifth Amendment. The Court held that a defendant does not have a right to have counsel stand by as they probably lie to the court. 5) BASIC FOURTH AMENDMENT CONSIDERATIONS a. Introduction and Exclusionary Rules i. The Fourth Amendment is problematic because it is contingent on reasonablenesstheres no absolute right here. This creates a more debatable basis for rule making. a. The Supreme Court is a legislature of Fourth Amendment reasonablenessin this area, they answer to no one. ii. Two clauses: Unreasonable search and seizure. a. This almost didnt make it. Warrants require probable cause. a. Probable cause is facts specifying that the individual who is the target committed the specified crime in the mind of a reasonable person. It is a reaction to the Crown: i. The Crown had used general warrantsI can go where I want with the warrant. b. Probable cause to search is determined on whether or not there is a fair probability that the area to or object to be searched contains evidence of a crime.

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WEINER ON CRIMINAL PROCEDURE c. Probable cause to arrest requires a fair probability that the person arrested has committed a crime. A third Fourth Amendment issue is remedies under the Fourth Amendment. a. There is no hint of any remedy found in the Fourth Amendment, unlike in the Sixth where its clear that a trial with no counsel is no goodaffects the outcome. iii. The illegal seizure doesnt involve a claim of reliabilityif the person has something illegal on them, they either had it or they didnt. This is suppressing extremely reliable evidenceactually hurts the verdicts accuracy. a. The issue is whether or not the item was properly obtained. b. This is why people are uncomfortable with the Fourth Amendment. As Cardozo said: The criminal goes free because the constable has blundered. Before 1886, no federal court had ever suppressed any evidence because of the Fourth Amendment. 1886 Boyd casechanged this, but no longer the law because of changing concepts of reasonableness. iv. Weeks v. United States (1914). In Weeks, the Court adopted the exclusionary ruleevidence seized by federal officers in violation of the Fourth Amendment will be excluded from the federal criminal proceeding. Not tough for fedsmost are prolonged investigation. a. Feds didnt sacrifice much hereeasy to comply. Blundering cops (because of heat of moment) are more likely than federal agentsstate crimes have more immediacy and federal officers are better trained, as well as do less street work. In Wolf v. Colorado (1949), the Court hemmed and hawed but declined to apply the exclusionary rule to state officials as a matter of fundamental due process. v. Mapp v. Ohio (1961). PD raided a house without a warrant looking for illegal pornography. They found it. The Court made the exclusionary rule applicable to the states as it held that any evidence obtained in violation of the Fourth Amendment is inadmissible in state court criminal proceedings. This step took awhile because of peoples discomfort with rewarding the criminal (with exclusion) while punishing the cop no one wants to free guilty defendants. The Court stated that suppressing the unconstitutionally obtained evidence helps in two ways: a. Courts are no longer in position of sanctioning constitutionally violative conduct.

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WEINER ON CRIMINAL PROCEDURE i. Not entirely trueimproperly seized stuff can come in as evidence in a civil case. b. Deterrence. Under the economists notion of the rational actoreveryone makes rational, self-interested decisions. i. Applying this to the officer, the Court felt that the suppression of evidence motivates Fourth Amendment compliance by depriving the cop of the benefits of his conduct and work. ii. This also doesnt workwont stop manic cops who want to harass or just get drugs/guns off the street without caring about convictions. vi. The exclusionary rule applies even when the PD errs while attempting to do the right thing and follow the rules. a. The exclusionary rule works like a blunt objectit applies absolutely.

b. Reasonable expectations of privacy rule and its basic applications i. Katz v. U.S. (1967). FBI bugged a phone booth with probable cause but without a warrant. They taped Ds phone calls and charged him with illegal gambling. They had no warrantthe Circuit Court held that because there was no physical entrance, there was no search or seizure to violate the Fourth Amendment. The Court held that the Fourth Amendment is implicated and a warrant is required wherever a person has a subjectively reasonable expectation of privacy. a. The D had a reasonable expectation of privacy in a phone boothhe went in there and shut the door, clearly not expecting to be broadcasting his phone calls to the whole world. The Court phrased this in terms of zones of privacy. There is no reasonable expectation of privacy where other people are present and may be expected to hear or observe the conversation between two people. Reasonable expectations of privacy change as the world itself changes. ii. U.S. v. Bellina (4th Cir. 1981); U.S. v. Hoey (8th Cir. 1993). In order to preserve a reasonable expectation of privacy, a person must subjectively manifest that expectation by taking affirmative steps. Such affirmative steps including locking doors, closing blinds, etc.

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WEINER ON CRIMINAL PROCEDURE You lose your reasonable expectation of privacy in property when you abandon it. iii. Oliver v. U.S. (1984). D complained that PD trespassed on his farm in response to complaints that he was growing marijuana there. They walked past the house, through a gate, and along a road for several hundred yards, passing a barn and a parked camper. Their investigation showed marijuana in a field approximately one mile from the farmhouse. The Court held that there is no reasonable expectation of privacy or Fourth Amendment protection for open fieldsonly curtilage (space immediately adjacent to a house) has any degree of Fourth Amendment protection. iv. U.S. v. Dunn (1987). PD trespassed without a warrant on Ds ranch, even though the whole ranch was surrounded by barbed wire fence. They crossed through several fences before smelling the odor of a drug-making chemical. Eventually, they saw a drug lab inside a barn that was 60 yards from the ranch house and not enclosed in the house fence. The Court held that whether or not area surrounding a house is protected curtilage is determined by evaluation of: a. The proximity of the claimed area to the home; b. Whether or not the area is included in an enclosure surrounding the home; c. The nature of the use of the claimed area; and d. The steps taken to protect the area from observation by people passing by. The Court held that the barn was not curtilage because of its distance from the house, as well as the fact that the barn was not within the same enclosure and there was no protection from observation. N.Y. New York makes no distinction between curtilage and open fieldsa warrant is required for entry to all private property, regardless of whether or not it is fenced or merely posted. v. California v. Greenwood (1988). PD rummaged through Ds curbside garbage bags and found items indicative of drug use. The Court held that there is no reasonable expectation of privacy in curbside garbage and therefore Fourth Amendment protections do not apply. N.Y. In New York (and New Jersey), there is a reasonable expectation of privacy in garbagePD requires a warrant to inspect it.

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WEINER ON CRIMINAL PROCEDURE vi. California v. Ciraolo (1986); Dow Chem. Co. v. U.S. (1988). Government engaged in aerial surveillance/flyovers of the Ds property in these cases. The Court held that there is no reasonable expectation of privacy and therefore no Fourth Amendment protection for items on land visible from overhead flights. a. Any member of the public flying overhead can see things on the property, therefore, why not the PD? Florida v. Riley (1989). The Ciraolo rule extends to low-altitude helicopter surveillance, as well. vii. California Bankers Assn v. Shultz (1974). Do the record-keeping and reporting requirements of the 1970 Bank Secrecy Act violate the Fourth Amendment by making banks agents of the government with regard to their clients transactions? The Court held that there is no reasonable expectation of privacy in and Fourth Amendment protection for financial records that are held by a bank. viii. U.S. v. White (1971). An informer wearing a radio transmitter engaged the D in conversations that were overheard by an agent with a receiver. The Court held that there is no reasonable expectation of privacy in and Fourth Amendment protection for conversations with others. a. If you engage in illegal activity, you take your chance that your friend will go to the cops. Tape recorded conversations are a guilty mans worst enemy and an innocent mans best friend. ix. Smith v. Maryland (1979). Pen Registers are installed on phone lines in the central office and record the lists of numbers dialed by a phone. In Smith, the PD installed a pen register in the phone companys office that recorded the numbers dialed from the Ds phone. The Court held that pen registers of numbers dialed are not private and therefore not subject to the warrant clause for searches. a. The defendant voluntarily turned the number-dialed information over to the phone company by using the phone. b. Warrants are necessary for anything to do with conversations. x. U.S. v. Meriwether (Sixth Cir. 1990). Pagers are by themselves not protected. If the PD takes the pager and keeps track of subsequent pages, no warrant is needed. However, there is a legitimate and reasonable expectation of privacy in the history of old pagesa warrant is need for that.

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WEINER ON CRIMINAL PROCEDURE xi. Bond v. U.S. (2000). PD goes on bus, squeezes a bag, and feels a bricklike object that turns out to be cocaine. The Court held that there is no reasonable expectation of privacy if the government touches the bag in the same way other people would, although if the PD engages in objective conduct, such as squeezing, intended to ascertain the contents of the packagea warrant is required. a. Regular people move each others bags all the time everyone does it and there is no reasonable expectation that it wont happen. i. Therefore, PD can touch, but not squeeze. c. Reasonable expectations of privacy and sensory enhancement i. U.S. v. Place (1993). Police dogs can sniff luggage and personal goods without a warrant or probable cause as there is no reasonable expectation of privacy in any kind of emanating odor. The dogs positive signal may furnish probable cause for obtaining the necessary warrant. U.S. v. Thomas (2d Cir. 1985). A police dog sniff outside a house is intrusive enough to constitute a search. U.S. v. Colyer (D.C. Cir. 1989). A police dog sniff outside an Amtrak sleeper car is not a search. Per Prof. Kessler, a dog sniff of a person requires justification by reasonable suspicion if done selectivelynothing if done for anyone who happens to pass by. ii. U.S. v. Knotts (1983). PD was concerned that A was using a chemical to manufacture illegal drugs. They obtained permission from the chemical manufacturer to install a tracking beeper in one of the chemical containers. PD then used the signal to follow A to Bs house. The signal became stationary at the Ds house. The Court held that use of an electronic tracking beeper to aid in what could ordinarily be accomplished by visual surveillance while following someone does not violate the reasonable expectation of privacy that requires a warrant. iii. U.S. v. Karo (1984). A DEA agent learned that D had ordered chemicals from an informant. A court order, later determined to be invalid, was obtained that authorized the installation of the beeper in one of the chemical cans. The beeper was used to help the Agents track the location of the can, as well as its exact location within a house. The Court held that a beeper can not be used to determine things, such as the structure of a houses interior, that agents would not ordinarily be able to determine without a warrantthat made it a search.

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iv. U.S. v. Taborda (2d Cir. 1980). PD used a telescope to watch a suspects activities in his apartment, not ordinarily visible to the naked eye, from up the street. The Court held that a sensory enhancement device, such as the telescope, becomes an invasion of privacy requiring a warrant when used to detect something that an ordinary person could not otherwise sense. U.S. v. Lace (2d Cir. 1982). PD used binoculars to help see the suspect. a. Enhancement of the ordinary senses is permitted via binoculars, so long as the suspect is basically open to public view. v. There is a sharp public/private distinctionin a public space, anything goes. If a public place for the 1st Amendment, then public for the 4th e.g., malls, parks, etc. d. Private Citizens and the State Action requirement i. Burdeau v. McDowell (1921). Private citizens blew open a safe and stole papers inside. The papers were then presented by a prosecutor to the grand jury. A search or a seizure conducted by a private citizen will not violate the Fourth Amendment because the Fourth Amendment controls state action, not private action. ii. U.S. v. Walther (9th Cir. 1981). The DEA gave an airline employee a reward for his actions and encouraged him to do searches. Private citizens may only violate the Fourth Amendment is there is a sufficient nexus to indicate that they are acting as an agent of the government. For Fourth Amendment purposes, a private citizen acts as an agent for the government when: a. The private person believes at the time of the search or seizure that his actions have been implicitly or explicitly requested or required by government agents; and b. The government agents knew or had reason to know that their actions would give rise to this belief on the part of the private person. iii. Walter v. U.S. (1980). FBI agents received a shipment of films that were misdelivered to a person. The misrecipient opened the box but did not view the films. Could the agents view the films without a warrant?

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WEINER ON CRIMINAL PROCEDURE The Court held that the subsequent search by an officer is limited by the scope of the initial search. iv. U.S. v. Jacobsen (1984). A FedEx supervisor asked an office manager to examine a package that had been torn by a forklift. They found a duct tape covered tube inside that contained bags of white powder. They then called the DEA, who came and reopened the tube and field tested the bags which turned out to contain cocaine. The Court held that a police officers subsequent search of a package is constitutionally permissible so long as it does not exceed the scope of the original search by a private citizen. This is consistent with the cat out of the bag theory. v. U.S. v. Paige (5th Cir. 1998). Roofers damaged a section of siding on Ds house. They went into the garage to look for replacement siding and found marijuana in the crawl space. PD came and did essentially the same search. The PDs search was challenged as illegal. The court held that if the private partys initial intrusion in the original search of the residence was reasonably foreseeable (based on activities or circumstances surrounding the search), then the occupant no longer possesses a reasonable expectation of privacy in the area/thing searched and the subsequent police search will not trigger the Fourth Amendment. In Paige, the intrusion was reasonably foreseeable because the D had given the workers permission to enter the garage and take what they needed.

6) FOURTH AMENDMENTTHE WARRANT REQUIREMENT a. Basic Justifications i. Johnson v. U.S. (1948) (holding that absent flight or imminent destruction of evidence, a warrantless search of a home in a drug case violated the 4th Amendment). The warrant clause balances the need for law-enforcement searches with citizens privacy interestsit requires evaluation by a disinterested neutral magistrate to protect citizens rights. Even though in this case, there was certainly enough evidence to satisfy the probable cause requirement, no warrant made the search constitutionally unreasonable. b. Procedure

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WEINER ON CRIMINAL PROCEDURE i. The officer writes an affidavit accompanying a warrant. The warrant authorizes the PD to search or seize a particular person at a particular place at a particular time. The warrant and affidavit are then presented to the magistrate. The magistrate will sign the warrant and make it effective after making an independent determination that probable cause to search or arrest exists. a. The probable cause must exist on the 4 corners of the affidavitthats all that counts for determining probable cause. ii. The police officer writing the affidavit rarely knows the facts based on personal knowledgetherefore, much hearsay is present. Probable cause evidence for obtaining a warrant can be based on hearsay. There is double hearsayinformant to cop, cop to magistrate. How does magistrate make an independent determination? iii. Warrants do not need to be issued by judgesthey may be issued by court clerks, or other neutral, detached personnel. There were no federal magistrates until 1980. This demonstrates the subjective nature of the warrant issuance process. Basically, anyone be authorized to issue warrants except for a prosecutors employee. iv. Aguilar-Spinelli doctrine, discussed in Spinelli v. U.S. (1969). This is the law in N.Y. and is also the basis of the present federal law. Aguilar created a clear structured approach to analyzing a magistrates ability to make an independent judgement. The Aguilar portion of the rule requires a demonstration of probable cause via: Information about informant to determine that the informant is: a. Reliable person, proven by; i. Police officer with first-hand knowledge of the facts at issue. ii. Informant with a track record of giving testimony that led to an arrest/conviction. iii. A crime victim, crime witness, or fellow crime participant will substitute for a track record as an indicia for reliability. iv. Declarations against interest are also sufficient. v. Corroboration of the persons storycorroborate the person, not the information? b. Reliable information. i. Police officer must set out in affidavit that informant personally observed what is reported in the affidavit.

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WEINER ON CRIMINAL PROCEDURE ii. If the facts are stated in extremely great detail on the affidavit, personal knowledge of the informant may be inferred. Probable cause with a warrant is the same as probable cause without a warrant. v. Spinelli v. U.S. (1969). The information was reliable but the informant was not. Can corroboration of the witness story make the witness is reliable for the purpose of establishing probable cause? In Spinelli, a drug case, does that the suspect had two phone lines and an apartment overlooking the bridge function as corroboration of the informants story? The Court held that a substantial amount of corroboration with information related to the illegal activity will make the witness reliable for the purpose of establishing probable cause. a. Innocuous, non-personal information will not serve to corroborateit must be information more related to the illegal activity. b. The corroborating information here was non-personal and substantially related enough to the crimes. vi. N.Y. New York continues to follow the Aguilar-Spinnelli rule as a matter of state constitutional law. What if judge gives PD a warrant that is based on information that does not conform to the Aguilar-Spinnelli requirements? In New York, the fruits of a search from a warrant with inadequate probable cause basis are suppressed. vii. Illinois v. Gates (1983). The informant told the PD that the Gates family has a large amount of drugs in their basement that they sell, and theyre going to get more from Florida. The statement from informant gave specific details of their Florida run and how they were going to carry the plan off (flying and driving). The PD goes to house, but cant see into the basement for corroboration. They then find out that the suspects did what the suspect said they would, although they flew back together instead of one flying and one driving. Magistrate issues a warrant. PD searches and finds marijuana, makes arrest. D moves to suppress, stating that the reliability of the informant (person) was never established under AguilarSpinnelli. Also, the informant never said how he knew these things. This fails the reliable information prong, and therefore cant be corroborated. The Court held that the magistrate should use common sense and consider the Aguilar-Spinnelli factors as he evaluates the totality of the circumstances in determining if there is probable cause. a. The judge/magistrate makes the probable cause decisions based on the weights of the evidence. i. This returns an element of trust to the magistrate.

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WEINER ON CRIMINAL PROCEDURE ii. Federal magistrates are professional judges. b. Aguilar-Spinnelli by itself is no longer the federal minimum standard for probable cause. Massachusetts v. Upton (1984). The Court reaffirmed and reiterated the Gates totality of the circumstances test. viii. Informers privilege: Government does not have to reveal the name of the informantdone for safety reasons of protecting informants. There is an exception to informers privilegeD has burden of proof to establish that informer has material testimony that will tend to show D is innocentthis will release name of informant. N.Y. New York: D must show that informant has material information on guilt or innocence. ix. U.S. v. Prandy-Binnett (D.C. Cir. 1993). PD stopped a man at an train station because he was walking faster than other peopleone way ticket, bought with cash, small bagsaid he was traveling overnight. He voluntarily opened bag to show PD clothes, and a small shopping bag. When they look inside, they see a brick-like object wrapped in duct tape inside the shopping bag. Brick contained cocaine. PD then searches, claiming the brick = probable cause. D moved to suppress saying it wasnt a rational inference that the brick was drugs. Does an odd story + the duct-tape brick = probable cause? a. There are rational inferences that it was drugs. b. PD knew that drug smugglers often used silver duct tape, also looked like the typical 4x6x10 kilo-brickthe profile. c. PD only knows what the man has told them. d. Story of traveling from NJ to DCnot a long train ride the story itself was not real outlandish. Thus, is the brick by itself = probable cause? e. If the man hadnt tried to help, PD had no warrant and would have had to leave. The court held that under the totality of the circumstances approach, the strange story + the kilo brick indicate that there was a fair probability that the brick was evidence of a crime. x. U.S. v. Valez (2d Cir. 1986). The PD witnesses a drug sale, radios description of twenty-something Hispanic male, black jacket, gray pants, white shirt with trim on collar, comb in pocket. PD arrests man, wrong suspect, but he has drug anyway. Suspect had a beard, witnessed seller did not. Facial hair was omitted. Collective information doctrine: What one PO witnesses is imputed to others when he radios it.

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WEINER ON CRIMINAL PROCEDURE Did the arresting officer act in reasonable reliance on the information availablewas what was transmitted by radio enough for probable cause? Is the description enough for probable causethe description described most young men in the Spanish neighborhood. a. Dissenter said it wasnt enoughlike describing a bank robbery suspect at Wall St and Broadway as a 30ish white man wearing a dark pinstripe suit with an attache case on Wall St. i. Kessler says dissent doesnt really make sense. Kessler says each factor alone is insufficientbut together, is there really a place where the description Ids everyoneeach descriptive factor knocks out more peoplethe white trim on collar really creates the probable cause via a totality of the circumstances analysis. c. Staleness and Probable Cause i. U.S. v. Harris (11th Cir. 1994). Probable cause to search may become stale because it requires specific information about times and places things definitely may change over time. Relevant factors to examine for determining staleness of information include: a. The nature of the crime involved; b. The habits of the accused; c. The character of the items sought; d. The place to be searched. Kessler says that the period of staleness depends what youre looking for, > than 6 months is probably stale for everything. ii. Staleness concerns only apply to search warrants. Probable cause to arrest is different, once you did a crime, you did itsubject to statutes of limitations. d. Restrictions on the Scope of the Search i. The PD may search for the proceeds of a crime, instrumentalities like weapons, drugs, and records. ii. Warden v. Hayden (1967). D was convicted of armed robbery. A search of his home turned up clothing that was admitted into evidence. On a habeas petition, D argued that the clothing was improperly seized because it was not an instrumentality or proceed of the crimehe said the clothing was mere evidence. The common law constitutional rule was that you could not search for mere evidence of crimedeemed too intrusive.

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WEINER ON CRIMINAL PROCEDURE The Court held that there is no more mere evidence ruleif entry to the premises is constitutionally proper, the PD may search for instrumentalities, proceeds, or any other evidence that links the accused to a crime. iii. Zurcher v. Stanford Daily (1978). The PD obtained a valid warrant and searched the newspapers office for evidence of a crime, even though there was no accusations made of any kind against the newspaper. The newspaper sued civilly, arguing that the search was a civil rights violation. The Court held that a search is constitutionally proper if there is probable cause to believe that there is evidence of a crime in the location to be searched, including locations occupied by nonsuspect third partiesany location may be searched for evidence of a crime. iv. OConnor v. Johnson (Minn. 1979). Law office searches are only constitutionally permissible if there is probable cause that the lawyer participated in the crimes, rather than just has evidence of clients acts. Law office searches are very rare. e. Execution of Warrants and the Reasonable Particularity requirement i. The Fourth Amendment requires that the warrant must set forth the location of the place to be searched with reasonable particularity. Moore v. U.S. (D.C. Cir. 1972). Places may be identified by the address, unless the address isnt sufficiently particular by itself, such as with an apartment building. Lyons v. Robinson (8th Cir. 1985). If the address is wrong, the search may be OK if the rest of the description is precise enough and enables the executing officer to locate and identify the premises with reasonable effort and if there is no reasonable probability that another location will be mistakenly searched. ii. U.S. v. Doe (3d Cir. 1983). Arrest warrants must describe the person to be seized with reasonable particularity. A specific name, physical description of the suspect, or even a DNA code will suffice for reasonable particularity in an arrest warrant. iii. U.S. v. Evans (7th Cir. 1996). PD executed a search warrant on Ds house looking for drugs. They searched the trunk of his car in the detached garage and found the drugs there. D objected to this search.A warrant authorizing a search of a house or a building authorizes the police to search anywhere on the premises and curtilage that could contain the objects described in the warrant to be searched for.

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WEINER ON CRIMINAL PROCEDURE iv. Andresen v. Maryland (1976). In this fraud case, the warrant to search offices authorized a search for a particular long list of records, as well as the general phrase other fruits, instrumentalities, and evidence of crime at this time unknown relevant to the [specific transaction at issue]. D argued that this phrase made it a general warrant that violates the Fourth Amendment. The Court held that basically general descriptions like fruits and instrumentalities of property to be searched and seized are permissible so long as they are tied to a specific criminal offense and are not just a search for evidence of a crime. v. Wilson v. Arkansas (1995). Normally, as a component of the reasonableness inquiry, PD must execute warrants during the daylight hours and knock and announce their authority unless circumstances exist that make an unannounced entry reasonable. An unannounced entry is reasonable if there is a high risk of an armed response or destruction of evidence. a. This has privacy foundations that are centuries oldthe world used to move a lot slower. b. Violations of the knock and announce rule will cause seized evidence to be suppressed. Officers may force the door if there is an explicit or implied refusal of admission. Richards v. Wisconsin (1997). No knock entry is justifiable when officers have satisfied the lesser standard of reasonable suspicion that following knock and announce would be dangerous or lead to the destruction of evidence. a. Wisconsins rule that no-knock was always OK for drug cases because exigent circumstances always exist was stricken by the Courtper se rules are not permitted because of the reasonableness inquiry. i. However, the defendant lost here because a sufficient emergency existed to permit PD to enterD had slammed the door when he saw people outside and started to run around (happens all the time). b. PD can knock on the door, saying UPS, etc. to get D to open doorbefore entering, he must say hes PD. Magistrates may issue pre-authorized no knock warrants when reasonable circumstances to do so exist ahead of time. U.S. v. Ramirez (1998). Limited destruction of property during execution of a no knock warrant is permitted if reasonable. a. Reasonable is gaining access or acting to prevent violent activity. N.Y. In New York, no-knock warrants are issued so long as circumstances demonstrate the necessity for it to the court.

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WEINER ON CRIMINAL PROCEDURE a. Circumstances may be need surreptitiously, flight risk, etc. to bug the place

vi. It is reasonable to detain the people who are in the house for a short time during the search. a. Based on reasonableness, rather than probable cause. vii. Wilson v. Layne (1999). PD executing an arrest warrant brought a photographer from the Washington Post with them, who took and published pictures of the defendants mother in her nightgown. This was a civil rights action against the PD. The Court held that media ride-alongs as the police execute search warrants are constitutionally unreasonable because the media intrusion is not justified by the objectives of the initial intrusion to search. f. Warrantless arrests. i. U.S. v. Watson (1976). A reliable informant called the postal inspector and told him that D wanted him to get in on a scheme with a stolen credit card. The inspector told the informant to meet with the D. The informant gave a pre-designated signal that D had more stolen credit cards. After the signal was given, D was arrested in public. The Court held that a person may be arrested in public without a warrant so long as the police officer witnesses the crime or probable cause otherwise exists. Conceptually, you need a warrant for a search but not an arrest. Gerstein v. Pugh (1975). Persons arrested without warrants are entitled to prompt post-arrest assessments of probable cause by a magistrate. ii. Riverside v. McLaughlin (1991). This was a class action brought after individuals were arrested without warrants and had to wait up to seven days for arraignment/probable cause determination. What is prompt under Gerstein? The Court held that a jurisdiction must arraign an individual arrested with a warrant as soon as is reasonably possible, but definitely no later than 48 hours from the arrest. a. After 48 hours, the government must prove a bona fide emergency or other extraordinary circumstance to justify the delay. b. Once the administrative steps of the arrest (booking, mug shots, and fingerprinting) are done, the suspect should be arraigned ASAP.

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WEINER ON CRIMINAL PROCEDURE c. Delay for delays sake or just to gather evidence to justify the arrest is unreasonable, even if within the 48 hour window. iii. Payton v. N.Y. (1980). PD had probable cause to believe that D committed a murder two days before. They went, without a warrant, to his home and arrested him there. They seized a shell casing in plain view that was admitted into evidence at the trial. A reasonably particularized arrest warrant is required to arrest someone in the homethe arrest warrant gives limited authority to enter the Ds house and make the arrest if the PD has reason to believe that the D is in the house. a. A full search warrant is unnecessary. U.S. v. Holland (2d Cir. 1985). Common areas of multiple-family dwellings are public for Payton purposesa warrant is not needed to make an arrest there. iv. Steagald v. U.S. (1981). DEA, with an arrest warrant for a fugitive, entered the home of the fugitives friend, the D. They entered the house and observed cocaine but did not find the fugitive. D moved to suppress the evidence uncovered by the searches. The Court held that absent exigent circumstances or consent, a search warrant is required to enter the home of a third party to look for a suspect. a. The magistrate must make a determination that there is probable cause to believe that the suspect is in the third partys home. b. An arrest warrant for a person does not protect the third partys privacy interests in his home. v. Minnesota v. Olson (1990). Visitors dont generally have privacy interests but an overnight guest has a sufficient privacy interest that Payton applies and arresting him in the home of a third party requires an arrest warrant. The Fourth Amendment protects people in their homesthey must be more than a temporary guest somewhere in order to get its protection. Being in someone elses house = public, thus Watson will apply. 7) THE FOURTH AMENDMENT--STOPS AND THE STOP & FRISK DOCTRINE a. Basic Doctrine i. Terry v. Ohio (1968). The Ds were hanging out outside a jewelry store, looking inside, and talking. They circled the store and the block several times. They repeated this for conduct for over 30 minutes. An

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WEINER ON CRIMINAL PROCEDURE experienced plainclothes PO saw them and concluded, based on their conduct in light of his 20 years of experience, that they were casing the place. He stopped and frisked them, finding guns on two of them. The Ds were then arrested, prosecuted, and convicted of concealed weapons charges. On appeal, they claimed unconstitutional arrest. The Court created the stop & frisk doctrineupon articulable reasonable suspicion based on specific facts that a specific crime is likely to occur, the police officer may stop a suspect. The officer may then frisk the suspect upon reasonable suspicion that the person has a weapon that may endanger the officer. a. This is the Little League version of the arrest & search. b. It is deemed less intrusive and therefore less violative of privacy interests protected by the Fourth Amendment than a full arrest and search. The frisk is limited to touching the outside the clothing to find if there is anything that might endanger the officeryou cant go inside the clothing unless you detect something dangerous. a. Tools may be dangerous and can be considered weapons. ii. Two reasonable suspicions; reasonable suspicion to stop is reasonable suspicion that this person has committed or will commit a crime. There then needs a reasonable suspicion regarding the weapon. Reasonable suspicion that someone will commit a crime = reasonable suspicion of a weapon in some cases (e.g., robbery). A person putting the hand in a pocket upon approach = reasonable suspicion of a weapon. iii. The Court recently held that anonymous tips are insufficient alone to create reasonable suspicion to stop and frisk someone. b. Two Car Stop Doctrines Developed Under Terry i. Pennsylvania v. Mimms (1977). PD pulled D over in his car for having expired license plates. After he stepped out of the car, they observed a large bulge in his pocket. They frisked him and found a loaded gun. D was unsuccessful in suppressing the gunhe was convicted of gun charges. As a bright line rule under Terry, the PD may order a driver or passenger out of a car. The Court accepted that there is an inherent amount of danger and unpredictability in traffic stops. In New York, people are told to remain in the car when the vehicle is stopped ii. New York v. Class (1986). PD stops a car. They look through the windshield to get the VIN, which was covered by a tissue box. PD stuck his hand in and moved the box, finding a gun along with the VIN. D

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WEINER ON CRIMINAL PROCEDURE moves to suppress the gun calling the intrusion into the car a warrantless intrusion without probable cause. The Court held that this limited investigative entry into the car to check the VIN was reasonable because the VIN is important in the regulation of cars. a. Also, there is a much lower expectation of privacy in a carit is all glass around, not like a house. i. The VIN is designed to be seen through the glass. ii. The stop was already reasonable because of the traffic violation. iii. An area of intellectual difficulty is is there an area of interaction between PD and individual that does not require Fourth Amendment justification Kesslers talking towhen PD just stops someone to talk. This area is defined by no forcible interference with the freedom of movementinducing you to talk has stopped the D. Officer grabs a mans arm, but lets gois that a stop? 2 officers block pedestrians pathis that a stop? a. 1 officer is unlikely to be a stop unless there is an order of legal authority or weapon display. 2-3, more likely despending on position. c. The Line Between a Stop and an EncounterWhat is a Seizure? i. U.S. v. Mendenhall (1980). D observed by DEA agents at Detroit Airport. The agents thought D was a drug courier because she fit a profile (she was nervous and the ticket wasnt in her name). The plainclothes officer approached her and identified himselfhe asked do you mind if we talk, is it OK? She then agreed to accompany him back to an office. After that, D agreed to be searched by a woman agent. The agent then found 1K of cocaine on her. The Court held that an encounter is a stop or seizure requiring reasonable suspicion when in view of the totality of the circumstances of the incident, a reasonable person would not have felt free to leave. a. Such circumstances that negate free to leave are the threatening presence of a few officers, physical touching, the display of a weapon by the PD, or a tone of voice that indicated the person was being compelled. Law enforcement had developed a hijacking profilesome more likely than others to be terroriststhis is who they stopped in getting on the plane. This progressed into drug courier profiling (people going to So. America briefly and then coming back up). The issue in Mendenhall that is most crucial to Fourth Amendment analysis is the progressivity in amount of evidence needed for each step (stop search arrest).

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WEINER ON CRIMINAL PROCEDURE a. Progressivity is also important for Miranda purposes--you dont get Miranda in a stop but you do in an arrest. Kessler says that Mendenhall establishes that federally, there is a just talking to level in the progression. ii. Florida v. Royer (1983). D fit the profile of a drug courier. State cops talk to him at Miami airport. They checked his luggage claim tags, noticing that the claim tags + airline ticket were in a different name. They took the tags and tickets, and asked him to accompany them to the airport police room. The Court held that reasonable suspicion did not exist because reasonable suspicion/probable cause may not be created by a profile alone (particularized facts are needed) and by taking the tickets, he was not free to leave. a. Factors in profiles might include nervousness, one-way tickets, cash purchases, different names, etc. b. Profiles may be used to build reasonable suspicion but are not sufficient alone. i. This case took a long time to arise because there is no reasonable expectation of privacy at a border/customspeople know theyre going to be searched. ii. Profiles dont limit officer discretion (what do they mean)? iii. N.Y. People v. DeBore. In New York, there is no talking-to level of encountera police officer may not just act like a normal person and start talking to someone. There are 4 standards to consider--, the first two are just for talking to encounters: Request for Information. a. A police officer may talk to someone and request information when he has a rational factual basis to be asking this person for information? i. E.g., what is in your pocket? b. By asking questions, the answers can produce reasonable suspicion and lead to the next step, they can also produce consent to search. c. The rational basis requirement is designed to minimize harassment. Common law right of inquiryconsent to search. a. PO may not ask for consent to search unless they have enough information to create a founded suspicionmore than a reasonable basis for questioning but less than reasonable suspicion. i. Kessler does not see a practical basis for distinguishing between founded and reasonable

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WEINER ON CRIMINAL PROCEDURE suspicionMcCloskey sees the difference in the degree of specificity. ii. This acknowledges the implicitly coercive nature of the uniform and the requestare people really free to say no? Stop. a. Requires Terry reasonable suspicion. Arrest. a. Requires probable cause. iv. Florida v. Bostick (1991). PD entered a bus and questioned all the passengers, seeking consent to search. The Court stated that the passengers were not restrained by the PD but by the bus ridethey wouldnt be free to leave anyway. On a bus, the question is whether or not a reasonable person would feel free to terminate the encounter. v. California v. Hodari D. (1991). PD encountered some kids huddled around a car who fled when they saw the PD. D ran and threw away a small rock as an officer was about to catch him. He was tackled and it turned out the rock was crack. D claimed that the pursuit was a seizure that lacked legal cause, therefore the crack rock should be suppressed. The Court held that the stop for the Fourth Amendment inquiry begins with the physical grab/seizure of the person, not with a mere display of authoritythe key is acquiescence to the authority. a. If D is never touched, he is never detained and therefore not deprived of freedom of movement. b. If D responds to a command to stop, he has submitted and is stopped, even if he later flees. c. Therefore, herethe stop began after D was tackled by the copand this was supported by reasonable suspicion because he threw the crack rock. N.Y. In New York, a citizen has the right to flee from the police mere running away by itself does not yield reasonable suspicion an attempt to stop someone using color of authority must be justified by reasonable suspicion. a. Man drops vanity with drugs after running from PD. The vanity cant come ina product of unconstitutional police conduct because the approach was made without reasonable suspicion. b. In N.Y., an attempt to stop someone will trigger a violation of rights. d. What is reasonable suspicion?

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WEINER ON CRIMINAL PROCEDURE i. Alabama v. White (1990). PD received an anonymous tip that D would be leaving a specific apartment in a brown Plymouth wagon with a broken taillight and would be driving to Dobeys Motel with a brown attach case that contained cocaine. PD then followed D and saw that almost everything was as the informant said it was. They stopped him just before the motel. He consented to a search of the brown case and the PD found the drugs. D argued no reasonable suspicion. The Court held that a significantly corroborated anonymous tip can create reasonable suspicion. a. This is based on a lesser application of the Gates totality of the circumstances test for determining probable cause. Florida v. J.L. (2000). An anonymous caller reported that a young black male wearing a particular shirt standing at a particular bus stop was carrying a gun. The only basis for suspecting illegal conduct was the tip. PD saw the D who fit the description. They stopped and frisked him, finding a gun. D had gun suppressed as the fruit of an unlawful search. a. The Court clarified White and held that more detail than just the presence of the suspect is needed for significant corroboration under the White test to serve as reasonable suspicion for justifying a stop. ii. U.S. v. Cortez (1981). This case set forth the assessment of the probabilities test for determining whether or not reasonable suspicion exists in a set of circumstances: The Court held that the totality of the circumstances in two elements must be taken into account in determining whether or not reasonable suspicion exists: a. Totality of the circumstances based on probabilities from profiles/patterns of certain kinds of offenders, objective observations of the suspect, and information from police reports; and b. That deduction process must raise a suspicion that the particular individual being stopped is breaking the law. e. Profiles and Reasonable Suspicion i. U.S. v. Avery (6th Cir. 1997). D, a black man, was encountered by PD in an airport. He failed his questions by giving implausible answers. He was searched and drugs were discovered in his bag. D relied on an equal protection argument supported by racial profiling-type statistics showing a disproportionate number of blacks are stopped in airports. The court held that an officer is only prohibited from investigating a person if he is acting solely on race with no other sufficient reasons to begin the investigation.

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WEINER ON CRIMINAL PROCEDURE ii. U.S. v. Sokolow (1989). DEA agents stopped D after they learned that he paid $2100 for airline tickets with small bills, that he was traveling under an assumed name, that he flew from Florida to Hawaii and stayed for only 48 hours, that he appeared nervous, and that he checked no luggage. The Court discussed the use of profiles in detecting criminals: The court held that although the presence or absence of profile factors in a particular case is, without more, inadequate to establish reasonable suspicionhowever, the profile factors may be used to help the officer form and articulate a picture of reasonable suspicion. U.S. v. Beck (8th Cir. 1998). D was stopped driving in Arkansas driving a car with California plates. PD argued that the stop was justified because California is deemed a source state for drugs. a. The court held that overbroad profile factors such as state of origin may not serve as reasonable suspicion for justifying a stop. Agents/PD are basically free to use profiles, just on a combination of individual factors. a. The profile is not relevantthe sum of the parts is ignored, but the individual factors may be used. b. PD follows this at their own perilthe factors taken by themselves must be enough to create reasonable suspicion. iii. Illinois v. Wardlow (2000). D fled when he saw a caravan of PD vehicles converge on an area of Chicago known for drug trafficking. He was stopped and frisked. PD arrested him after they found a handgun. He successfully argued in the state courts that flight alone did not create reasonable suspicion. The Court held that flight alone does not create reasonable suspicion but it may be considered as a factor in the total context of the circumstances to see reasonable suspicion exists. a. Do people usually flee the PD in the neighborhood? is a valid question here. f. The Extent of the FriskSearches and Reasonable Suspicion i. Minnesota v. Dickerson (1993). The frisk requires a separate reasonable suspicion (apart from the stop) that the suspect has a weapon and is limited to a protective safety searcha frisk is not permitted to be a full search for evidence. Once the officer concludes that there is no weaponthe frisk must stop. If drugs, etc. fall outapply rules like plain view. A smart cop uses the feel of the objects on the frisk to create probable cause. Then make the arrest, and justify the search as a search incident to arrest.

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ii. N.Y. In New York, PD may only progress from frisk to search if there is discovery of a hard object that might be a weapon. If you frisk in N.Y. and feel only a soft object, you cant go further. iii. U.S. v. Rideau (5th Cir. 1992). PD was working in a high crime area of the city where people often carried guns and made drug deals. They saw a man standing in the road who looked drunk. When they approached, they frisked the D and found a gun. Reasonable suspicion that a suspect has a weapon is broadly construed in the officers favor and derives from: a. The crime suspected. i. Robbery or other violent felonies, etc. b. The actual conduct of the suspect. i. Reaching, adjusting, etc. (mere fact of drug sale suspicion not equal to suspicion of weapon-L Rev. article?) c. Attributes of clothing. i. Bulges, etc. ii. Bratton and Giuliani tried to create a science of what carrying a gun does to people (gait, etc.). iv. Michigan v. Long (1983). After a one car MVA, an officer looked inside the Ds car and saw a long hunting knife. The D was acting strangely. Officer performed a protective search of the car (= frisk) and found marijuana. A limited protective search of an area other than a person himself may be performed under the frisk portion of the Terry rule when the officer has a reasonable suspicion of danger. v. U.S. v. Berryhill (9th Cir. 1971). A companion of an arrestee is automatically subject to a frisk, even if he or she presents no other objective harm to the officer on the facts. This has been rejected by other Circuits as inconsistent with Terry. vi. Ybarra v. Illinois (1979). A bar is being searched for guns and drugs, pursuant to a warrant. Whos buying if the bar is selling? The clientele was searched. Search was overturnedmere presence by itself during the execution of a search warrant is not enough to create a reasonable belief that suspect is dangerous. vii. U.S. v. Swann (4th Cir. 1998). PD responded to the theft of a wallet in an office building. The thief threw the wallet in the direction of three black men who took it and fled the scene. An officer saw the D acting edgy and

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WEINER ON CRIMINAL PROCEDURE trying to get away from him and get behind his back. Other PD arrived, frisked D and found a hard object in his sock. Officer pulled it outit was five stolen credit cards from the wallet. If a reasonable officer can believe that an object is a weapon, the officer may seize the item to satisfy himself that it is not. a. Factors that could make something a weapon are size, shape, or its hard or soft quality. viii. Maryland v. Buie (1990). D is arrested in the living room, therefore, the full grab-area search is restricted to the living room. However, the PD goes down to basement and finds warm-ups that match the description given by robbery witness. D is suspected of robbing a bank with a partner. D argues search exceeded the permitted grab-area. PD says they were looking for the partnerthe guy hiding in the house could ambush them. The Court held that the PD can make a protective sweep that is justified if there is reasonable suspicion that the area swept harbors an individual other than the arrestee who might cause danger to the officer or others. a. Reasonable suspicion can be built on movements, noises, etc. U.S. v. Henry (D.C. Cir. 1995). D arrested outside the house. PD then conducted a protective sweep inside the house. a. The court held that a protective sweep may be made inside the house even when the arrest is outside, so long as there is factual justification indicating reasonable suspicion that there is someone likely to harm you inside. g. The Fine Line Between the Terry Stop and an Arrest i. Introductionwhen does the stop turn into the arrest? Moving people during a stop, guns during a stop, duration, handcuffs during a stop all become issues of determining stop vs. arrest. Extended limits on control, movement, and time may turn a stop into an arrest. ii. Florida v. Royer (1983). D was taken from the public area of the airport to the small room during a Terry stop. In the small room, he consented to a search of his luggage. This consent was held to be invalid because it was the result of an arrest without probable cause. The Court held that in order to qualify as a Terry investigative stop rather than an arrest, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.

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WEINER ON CRIMINAL PROCEDURE a. The state must prove that it was sufficiently limited in scope and duration in order to be justified by reasonable suspicion. The Court held that forcing a suspect to move in order to further an investigation or place pressure on the suspect requires probable cause because it is an arrest. iii. People v. Hicks (N.Y. 1986). PD responded to a report of a robbery at a factory. Description of the suspects and their vehicle was then broadcast on the radio. PD pulled over two men of the same description but in a different vehicle and questioned them. They gave strange answers. PD ordered the men out of the car and frisked them. They were then taken to the scene for identificationthey were told that theyd be let go if not identified. A minute later, on the scene, they were identified by the victims. A search of the car showed weapons and proceeds from the robbery. Ten minutes had elapsed from the holdup to the identification. Suspects may be detained and transported a short distance for show-up identification without turning a Terry stop into a custodial arrest when the distance and time involved are short and there is no show of force. iv. Intrusive investigation and searches for evidence turn a Terry stop into an arrest that requires probable cause. v. U.S. v. Ervin (6th Cir. 1998). PD pulled D over on reasonable suspicion of DWI. During the traffic stop, it became apparent that D was not intoxicated. It also became apparent and reasonable sus that D was a drug dealer. The court held that if during the course of a stop to investigate crime A, the officer obtains reasonable suspicion to investigate crime B, the detention may be extended to investigate crime B even though the original justification for the stop may no longer exist. vi. Ohio v. Robinette (1996). D was legally stopped for speeding and was given a verbal warning. When the officer returned the license, he said one more question are you carrying weapons drugs, anything like that? D answered no. PD then asked to search the car. D consented. PD then searched, found drugs, and arrested D. D argued that the consent was invalid because it was pursuant to an illegal arrest. The Court held that a suspect may be asked about other matters or crimes at the end of a legitimate stop for another offense and such questions do not turn the Terry stop into an arrest. a. Also, a person does not need to be told you are free to go at the conclusion of a Terry stop to indicate the end of that stop.

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WEINER ON CRIMINAL PROCEDURE vii. People v. Allen (N.Y. 1989). Guns and handcuffs may be used during a Terry stop if the officers have reasonable suspicion that they are necessary to protect the officer from harm. viii. U.S. v. Place (1983), also U.S. v. Sharpe (1985). A couple was detained at LGA on reasonable suspicion. However, the PD dogs were at JFK and needed to be brought to LGA (90 minutes). The dogs sniff suitcases and the PD let the couple go. The dog sniffs were positive. PD got a search warrant to open luggage on Monday and an arrest warrant on Tuesday. The issue was the 90 minutesis 90 minutes a brief detention for investigation or did it require probable cause? Court held that there is no hard and fast time rule for what turns a Terry stop into an arrest, although 90 minutes is excessivefifteen minutes seems to be the magic number. Fifteen minutes is accepted as a brief detention for Terry purposes, but may be more if circumstances make it necessaryneed a good reason. a. Good reasons are something unusual and specific. b. D must make motion to suppress because the more than 15 minute stop was an arrestthere was no probable cause, even if there was reasonable suspicion. ix. U.S. v. Van Leeuwen (1970). Officials acting on reasonable suspicion detained a package in the mail for a day, while an investigation continued to develop probable cause and obtain a warrant. The Court held that so long as there is reasonable suspicion, it is not constitutionally unreasonable to detain property for a brief period such as a day. U.S. v. LaFrance (1st Cir. 1989). PD had reasonable suspicion to believe that Ds FedEx package had drugs in it. D expected to get the package around 11 AM but did not get it until after 2 PM because of the packages detention. The dog test was positive and D was arrested for drugs. a. PD can detain property for a reasonable amount of time so long as a suspects liberty interests arent infringed upon. x. Arizona v. Hicks (1987). PD lawfully entered premises from which shots had been fired. They noticed two sets of expensive stereos in a poor apartment. One officer moved a turntable to check out the serial number and see if it was on the stolen list. State argued that although there was no probable cause, it was a cursory search supported by reasonable suspicion. The Court held that any kind of search for evidentiary purposes and not for safety purpose is a search requiring probable cause justification.

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WEINER ON CRIMINAL PROCEDURE a. However, the PD can use information acquired during a stop/arrest from sweep and plain view for the purpose of documenting probable cause and getting a warrant. xi. Whren v. U.S. (1996). PD made a traffic stop for legitimate violation. They then observed drugs in the Ds hands. Ds argued that the drug stop was not supported by probable cause or reasonable suspicion and that the traffic violation stop was pretextual. The Court held that federally, a legitimate traffic violation stop leading to an arrest for other crimes is reasonable so long there was probable cause to believe that a traffic violation took place, even if the stop is really a pretext for other investigations. N.Y.likely to be more liberal than Whrencould I have stopped him without the traffic stop? XII. FOURTH AMENDMENT: EXCEPTIONS TO THE WARRANT REQUIREMENT FOR SEARCHES h. Introduction i. There are several permissible intrusions into liberty that do not require search warrants. ii. As an overview; Search incident to arrest. Administrative searches (inspections). Consent. Inventory. Car. Plain-view. Exigent circumstances. Stop and frisk. i. Searches incident to arrest: i. Chimel v. California (1969). PD arrested D at his home with an arrest warrant for burglarizing a coin shop. The PD asked D if they could look around. He objected but they searched anyway on the basis of the lawful arrest. There was no search warrant. The PD looked through the entire house. After completing the search, which lasted approximately an hour, they seized some medals and coins. D moved to suppress the results of the warrantless search. The Court relied on the Katz reasonable expectation of privacy principle and held that the scope of the search incident to arrest is limited to a search of the arrestees person and the grab-area within the arrestees immediate possible control for weapons or destructible evidence.

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WEINER ON CRIMINAL PROCEDURE a. This search is limited by its essential purposefor finding things that endanger the officer. b. This is more than a protective sweep because the sweep is limited to areas where a person could hide. A grab-area search may include anywhere nearby that a weapon could be kept. In a sweep, PD can look anywhere in the house but only in places where a person could hideyou cant open drawers, etc. However, in a grab-area search incident to arrest, you can look anywhere a weapon may be. A search incident to arrest needs no justification beyond the arrest, unlike a protective sweep which needs specific facts to support it. The grab area is determined at the time of the arrestwhere the D is arrested. Handcuffs are irrelevantD must be on premises for the search to be considered a grab-area search incident to arrest. i. There used to be no restrictions on search incident to arrestChimel is a protection in itself. The grab-area can be extended by being nice to the suspect pretext, got any loafers upstairs for after they take the shoelaces away from youIll get the loafers for you or you can come with me.

ii. Washington v. Chrisman (1982). A college kid was ticketed for underage drinking. PD follows kid up to dorm room to get the kids ID. Door stays open but cop stays outside. Cop looked in and saw pot and drug paraphernalia. PD warned the D and his roommate of their rights and asked about other drugs. He was then given permission to found the room where he found more pot and LSD. The Court held that the grab-area for the search incident to arrest moves with the suspect because the arresting office must maintain custody and control over the arrested person. a. Court held that it was plain-view, that he waited outside instead of going in that he was entitled to do, that no further rights were deprived. You cant open a book but you can pick it up under plain view. iii. U.S. v. Robinson (1973). D was convicted of possession and concealment of heroin. He was pulled over in his car, arrested for a traffic charge, and searched. The search turned up the drugs. The Court held that as a custodial arrest of a person with probable cause for any offense is a reasonable intrusion under the Fourth Amendment, the D may fully search the bodies of persons incident to arrest for weapons or evidence. a. There still is a reasonableness prong herealthough there is no privacy expectation as to what the suspect is carrying,

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WEINER ON CRIMINAL PROCEDURE strip or cavity searches are unreasonable for traffic violations. Robinson applies to all offenses from traffic violations to felonies. a. N.Y. New York does not follow Robinson and full searches incident to arrests for very minor offenses are forbidden here. A search incident to arrest may not be performed twice. iv. U.S. v. Chadwick (1977). PD took a footlocker to the station and searched it, 90 minutes after the arrest of its owner. The Court held that this search could not be viewed as incidental to the arrest and required a separate warrant. A reliable container is a container designed to conceal goods when not in their owners possessiona property owner has a reasonable expectation of privacy in a reliable container. a. Keep control of the inside while losing the outside for transitthis maintains a reasonable expectation of privacy. b. A reliable container is luggage, an opaque container that securely zips or snaps shut, or a sealed cardboard box. i. A flap closing is not a reliable container. If a reliable container is on the arrestees person, it may be searched. If it is within the grab area, there is no automatic right to search. a. The reliable container may still be seized until a warrant is obtained. j. Cars and SearchesAutomobile Exceptions i. The automobile is highly regulated and made largely of glasslower reasonable expectation of privacy. Also, cars are mobilemore likely to be an exigent circumstance. Cars are unique! There are three different levels of car searches: Car frisk. Search incident to arrest. Carroll full car search (warrant exception). ii. Car frisk: The frisk of a car is the quick look and is a limited search for weapons in the passenger area of the car. This requires reasonable suspicion of a weapon or other danger. a. This is determined by what you see of the person or what is visible in the car. b. D must be in or by the car during a car frisk. PD cannot open reliable containers in the passenger area, unless the focus of the reasonable suspicion is on the containerwhich needs to be squeezed. a. You need a stop + a reasonable suspicion of a weapon.

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iii. New York v. Belton (1981). PD pulled over a speeding car with four men, one of whom was D. PD found that none of the men had the registration. He also smelled pot and saw a pot envelope on the floor. PD arrested the men for marijuana possession. PD then searched the car and found a jacket on the back seat belonging to D. PD found cocaine in the jacket, charged D with cocaine possession as well. D challenged the search. The Court held that in a grab area search incident to arrest in a car, the full passenger compartment + glove box may be searched: Grab areaif you are arrested in your car. a. This includes the full passenger compartment + glove box. b. If a reliable container is in the car, it may be opened pursuant to a search incident to arrest. c. However, the arrested suspect must still be in the caryou cant put him in the cop car and then come back to search. In a search incident to arrest, you may not search the trunk of the car. a. Luggage area of a minivan or SUV is not a trunkthey are within the Belton search area. If a person is ordered to Get out of the car and then is immediately arrested, that person has been arrested in the car. a. Suspect must be in the area of the vehicle in order for the PD to do the grab area search of the car. iv. Chambers v. Maroney (1970). A gas station was robbed by four men in a blue station wagon. D was found in a car matching the description. He was arrested with the others. The car was taken to the police station and thoroughly searched. Weapons were found concealed in a compartment under the dashboard along with other evidence linking the car to the robbed gas station. The Court ruled previously that the search was too far removed to be incident to arrest, however; The Court relied on the Carroll doctrine and held that when there is a nexus to the car via an arrest in or by the car, and probable cause to search a car for contraband/evidence, a search warrant is unnecessary if the car is movable and the occupants are altered. a. This reflects the movable nature of a car and the possibility that things can change very quickly. b. The probable cause determination is for the whole car if there is belief that the contraband is somewhere in the car, in general. The search may happen even days later and can include anywhere in the entire car, including behind panels and inside tires. A full car search extends to containers anywhere within the car. v. South Dakota v. Opperman (1976). PD searched Ds impounded car without a warrant and found drugs. An inventory search is done for

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WEINER ON CRIMINAL PROCEDURE caretaking purposes to protect property and the PD from dangerous items and false property claims. An inventory search for community caretaking to protect the owners property while the car is in custody does not require a warrant or probable cause. a. The car must be in government custody from an arrest, forfeiture, motor vehicle violation, or other towaway (including parking tickets). After this, government may look at anything in the passenger compartment or trunk, including in any containers, but may not take out panels. The inventory search may include anything in the passenger compartment or trunk, including locked containershowever, panels may not be removed and the property may not be destroyed. a. It may be done by the arresting officer or property custodian on the road or wherever the car is kept, so long as the inventory is properly logged. Inventory searches are administrative searches because the government must be responsible for what they take. vi. California v. Acevedo (1991). PD arrested D for drug crimes. They searched his car and found a paper bag with marijuana in the trunk. There was confusion before on the treatment of closed containers in a car, when probable cause existed for the car but no the container, and vice versa. The police may search a car and all containers within it if there is probable cause to believe that evidence or contraband is contained within. vii. Wyoming v. Houghton (1999). PD searched all occupants of a car. The Court held that the car search rules and exceptions apply to the passengers property and reliable containers as wellPD may search passengers packages and belongings that may conceal the object of the search. viii. Knowles v. Iowa (1998). PD stopped D for speeding but gave him a citation instead of arresting him. PD then did a full search of the car and found marijuana. Can a full Belton search be done if there was no custodial arrest? A full Belton car search requires a custodial arrest. ix. Delaware v. Prouse. Prior to mid 1970s, officers did thousands of license and registration checksstops with no offense, to ask for papers. Fear of unlicensed, uninsured people. Used as a pretext. License and registration stops made without particularized suspicion are violative of the Fourth Amendmentthey are unreasonable searches.

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k. Plain Viewwarrant exception i. Coolidge v. New Hampshire (1971). D was arrested for rape/murder of a young girl. They approach his car with an invalid search warrant (issued by a PD clerknot neutral). They could not search the car pursuant to the warrant (hair from car matched to victim). The PD then stated that all the stuff was in plain view. For an object to be in plain view, you must recognize that what you are looking at and have probable cause to believe that it is related to the crime. a. Here, the samples, etc. were not immediately recognizable or incriminatingtherefore, not in plain view. ii. Horton v. California (1990). PD had a search warrant that authorized a search of Ds home for rings that were taken in a robbery. During the search, the PD found weapons sitting in plain view and seized themhe knew what he was looking for, although they were not in the warrant. The Court held that an item is in plain view when its incriminating character is immediately apparent and the officer is both justified in being in the place where the item is found and in having access to the item itself. a. It does not matter if the officer knows what he is looking for or if he merely stumbles across the incriminating object. iii. As a distinction, an item is in open view when the officer is outside the Fourth Amendment protected area and sees ithe cant seize it but can use the object as probable cause for getting a warrant. The officer must be inside the Fourth Amendment protected area in order to seize an object in plain view. l. Border searches & roadblockswarrant clause exceptions i. U.S. v. Ramsey (1977). Routine searches may be made at the borders without probable cause and without a warrant. They are justified by the national interest in protecting the border. a. If you cant control what goes in and out of the country, its not a country. An international airport is considered a border. The major problem of border searching is that there are too many people to search everyone. a. This applies to both contraband smuggling and illegal immigration. b. This has led to the use of profiles in checking border crossings.

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WEINER ON CRIMINAL PROCEDURE ii. U.S. v. Braks (1st Cir. 1988). D was taken to a private room by female customs officers and forced to lift her skirt and expose her underwear. The officers noticed a bulge that turned out to be cocaine. Was this a routine search? The court held that relevant factors in determining whether a border search is non-routine and requires justification by individualized reasonable suspicion are: a. Whether or not the subject disrobes or exposes intimate body parts. b. The use of force to effect the search. c. Whether or not the search exposes the suspect to pain or danger. d. Physical contact between officials and suspects during the search. e. Whether or not the suspects reasonable expectations of privacy are abrogated by the search. iii. U.S. v. Montoya de Hernandez (1985). In this case, D was a cocaine balloon swallower who was detained for sixteen hours and refused food, drink, or to use the toilet during the detention. She carried a lot of small bills and gave very strange answers to border inspectors. Her abdomen was swollen upon the first strip search by a female inspector at the airport, leading to reasonable suspicion. The Court held that reasonable suspicion is sufficient to justify detaining a traveler at a border for a more intrusive, non-routine search. iv. U.S. v. Martinez-Fuerte (1976) (immigration); Michigan Dept of Police v. Sitz (1990) (DWI). Suspicionless car stops are permissible when done by temporary or permanent roadblocks that catch all who use the road, as opposed to individualized stops. v. Almeida-Sanchez v. U.S. (1973); U.S. v. Brignoni-Ponce (1975). A roving border patrol may not search or detain a vehicle without probable cause, although it may stop vehicles for questioning under reasonable suspicion. U.S. v. Martinez-Fuerte (1976). PD set up a fixed check-point inside the border, stopping everyone for a limited discussion and papers check. The Court held that a permanent checkpoint located inside the border may stop people for limited questioning without a warrant or probable cause, although performing a search requires probable cause. a. The border search power extends 100 air miles inside the border under code and statute.

vi.

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WEINER ON CRIMINAL PROCEDURE b. Stopping everyone eliminates the discriminatory and humiliating effect of singling people out. vii. Suspicious international mail can be opened (if it feels puffy, etc.) but not read.

m. Administrative and Regulatory Searches i. Camara v. Municipal Ct. (1967). A homeowner claimed the right to refuse entry by a health inspector who wanted to do a code check. The Court held that an administrative search or safety inspection of a home does not require probable causewarrants to perform these inspections of homes are justified by proof that the search is in demonstrated compliance with the regulatory scheme. ii. New York v. Burger (1967). D owned a junkyard. PD from auto crimes came to do a statutorily authorized inspection. The PD had no warrant. They inspected and found that several stolen cars were on premises. D was charged with possession of stolen property. A warrantless inspection of a closely regulated business is reasonable if justified by: a. A regulatory scheme backed by substantial government interest. b. The search is necessary to further the regulatory scheme. c. The inspection program is a satisfactory substitute for a warrant because it: i. Limits the discretion of the officers. ii. Provides the owner notice that the search is made pursuant to law and has a properly defined scope. iii. U.S. v. Johnson (10th Cir. 1993). When administrative searches are performed by law enforcement officers as instruments in criminal law enforcement, they will be evaluated more strictly. n. ConsentsNo Warrant Needed to Search i. A person waives their Fourth Amendment rights by consenting to a search. ii. Schneckloth v. Bustamonte (1973). PD stopped a car with a burned out headlight and license plate light. Six men were in the car. The driver had no license and the only person with a license said the car was his brothers The PD asked if they could search the car. The man with the license said Sure, go ahead and opened the trunk. The search then revealed three stolen checks.

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WEINER ON CRIMINAL PROCEDURE The Court held that a search pursuant to voluntary consent is reasonable if it was voluntary and not coerced under the totality of the circumstances. a. The PD does not per se have to tell the suspect that he can refuse the searchthe presence of the warning is a factor that would help in making the voluntariness determination. i. Custody is also not a dispositive factor in making the voluntariness determination. Here, the consent was voluntary because the suspect was not under arrest and the officer used no force and made no threats. Schneckloth was extended to Fourth Amendment waivers made in the police station, as well. a. The logic was that the search is the investigation that Chief Justice Warren wanted in Mirandathis would reduce the number of convictions based solely on confessions. b. Voluntariness is a sufficient protection. i. A searchs product is not as dangerous as a confessionif the objects arent there, theyre not there, unlike a confession that may be baseless but coerced. iii. U.S. v. Gonzalez-Basulto (5th Cir. 1990). The court set forth six factors for relevant for determining whether or not consent is voluntary under the totality of the circumstances: The factors are: a. Voluntariness of the suspects custodial status. b. Presence of coercive police procedures. c. Extent and level of the suspects cooperation with the police. d. Suspects awareness of his right to refuse consent. e. Suspects education and intelligence. f. Suspects belief that no evidence will be found. iv. U.S. v. Prescott (9th Cir. 1978). Refusal to consent to a search may not be used to establish probable cause or guilt at trial. v. U.S. v. Jimeno (1991). D gave a general consent to a car search for narcotics. PD looked in a paper bag on the floor and found drugs in the bag. D argued that he did not consent to any container search. The Court held that ambiguity in the existence or scope of consent will be resolved in the PDs favorit is up to the defendant to resolve the ambiguity and express limitations on the consent. vi. U.S. v. Matlock (1974). D was arrested in the front yard of a house. His roommate let the PD into the house let them search. D moved to suppress the search.

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WEINER ON CRIMINAL PROCEDURE The Court held that a third party with actual authority based on joint access to or join control of property shared with the suspect may give valid consent for the common area to be searched. vii. Illinois v. Rodriguez (1990). Ds woman friend had moved out of his apartment a month before. She kept her key without his permission. When speaking to the PD, she called the apartment our apartment. Could she validly authorize a search of Ds apartment? The Court held that even absent actual authority, if a third party gives consent to search premises and that consent seems reasonable under the circumstances, the consent is valid and the search will be upheld. The officers belief here that the friend could consent seemed reasonable under the circumstances as she had a key and called the place our apartment. Reasonableness is the keyPD cannot just rest on ignorance is blissif it sounds weird, PD has a duty to verify the apparent authority. A third party cannot consent to an area that is for someone elses exclusive use and control. a. The babysitter cant consent to a search of her boss bedroom. viii. U.S. v. Carter (D.C. Cir. 1993). D consented to a PD drug search of his tote bag. PD pulled out a paper bag from the tote bag. D grabbed the paper bag from the officer and said it had food in ithe volunteered to show the PD the food, but pulled his hand out of the bag empty. He then rolled up the bag, looked at the officer, and withdrew his consent to search. The court held that consent to search may be withdrawn without penalty but the manner of the withdrawal can be used as a factor in establishing reasonable suspicion or probable cause. ix. U.S. v. Turner (1st Cir. 1999). PD asked to search Ds apartment for signs or evidence of a violent assailant because they suspected he was the assailant. He consented. The PD then saw a picture on the Ds computer screen that looked like the victim. The PD started searching the hard drive and found child pornography. D was convicted of child pornography and argued that the search exceeded the scope of the consent. If you consent to a search for a specific object/evidence, the PD may only search anywhere that the object may conceivably be found, but no further. Therefore, the computer file search lacked consent. o. Exigent Circumstances Justifying Warrantless Search or Arrest

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WEINER ON CRIMINAL PROCEDURE i. The exigent circumstances exception addresses the problem that it takes time to get a warrant. It covers various circumstances where although the police have probable cause to arrest or search, they must work quickly because delay could give the suspect or others the opportunity to flee, destroy evidence, or take up weapons. Arrest and search are discussed interchangeably. Dorman v. U.S. (D.C. Cir. 1970) sets out guideposts for exigent circumstances. Factors in determining the existence of exigent circumstance include: a. The gravity or violent nature of the crime to be charged. b. Whether the suspect is reasonably believed to be armed. c. A clear showing of probable cause that the suspect committed the crime. d. Strong reason to believe that the suspect is in the premises to be entered. e. The likelihood that the suspect will escape if not swiftly apprehended. f. The peaceful circumstances of the entry. ii. Warden v. Hayden (1967). PD pursued a robbery suspect into what turned out to be his house. The wife answered the door and the PD looked for the suspect and any weapons he may have concealed. They found incriminating clothing in the washer. The hot pursuit warrant exception applies when the suspect is aware that he is being pursued by policeit excuses the need for an arrest warrant and the need for a warrant to search an area where the suspect might be. a. Here, the washing machine search and seizure was justified by the fact that a weapon could be hidden in there + plain view. Hot pursuit may be on foot or in a vehicle. iii. U.S. v. Riccio (10th Cir. 1984). PD had probable cause to believe that D committed a robbery. They surrounded Ds trailer and told him to come out. A shoot-out ensued and D was shot. The PD entered the trailer to attend to him. In the course of the entry, the PD found incriminating evidence. The public safety exception applies when the delay in obtaining the warrant would result in significant harm to the police or members of the public. Here, getting a warrant would have led to a delay that could have killed the injured D. The hot pursuit and public safety warrant exceptions are often used in tandem.

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WEINER ON CRIMINAL PROCEDURE iv. U.S. v. MacDonald (2d Cir. 1990). The PD drug task force acted on an informants tip and set up surveillance outside an apartment building. An undercover went into the apartment and bought drugs. The PD then returned and executed a drug bust. They heard people scurrying around when they announced their presence. A safety sweep showed guns, drugs, and thousands of dollars. The requirement of a search or arrest warrant is excused if there is a risk of imminent destruction of evidence. The court held that there was an imminent destruction risk because the drugs could have been easily flushed and the rest of the evidence could easily disappear in the time it would have taken to get a warrant. v. The police may not intentionally, in bad faith, manufacture exigent circumstances. vi. U.S. v. Cuaron (10th Cir. 1983). FED. R. CRIM. P. 41(c)(2) permits warrants to be obtained by telephone. While not instantaneous, this can save a lot of time. Determination of exigent circumstances must include evaluation of the feasibility and availability of obtaining a telephone warrant from a magistrate. vii. Segura v. U.S. (1984). PD had probable cause to believe that two people A and B were trafficking cocaine from their apartment. They established surveillance and arrested A when he entered the lobby of the apartment building. They took A to his apartment, knocked on the door, and entered when the other B answered the door. Then PD arrested B and did a limited protective sweep. A and B were detained. The officers waited in the apartment for 19 hours until a full warrant could be obtained and the search done. The Court held that securing a dwelling, on the basis of probable cause, to prevent the destruction of evidence while a search warrant is being sought is not an unreasonable seizure. a. Possessory interests and not privacy interests are implicated by this kind of seizure because there is no search. b. There was no real interest with the possessory interests of A and B because they were in jail during the seizure. 8) FOURTH AMENDMENT: WHEN THINGS GO WRONG AND HOW TO FIX THEM a. Exclusionary Rule Basics

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WEINER ON CRIMINAL PROCEDURE i. Under Weeks and Mapp, evidence seized by federal and state officers in violation of the Fourth Amendment will generally be excluded from criminal proceedings. ii. The exclusionary rule does not apply in all courtroom situations. The exclusionary rule doesnt apply in: a. Sentencing. b. Habeas corpus. c. Grand jury. d. Civil cases. e. Immigration f. Parole revocation. iii. Walder v. U.S. (1954). D testified on direct that he never possessed or sold drugs ever in his life. P impeached him with evidence of heroin from his home that had been illegally seized in an earlier, unrelated case. The Court held that the exclusionary rule may not be used as a license to perjuryexcluded evidence may be used to impeach the defendant during direct examination after he opens the door with a lie. iv. U.S. v. Havens (1980). Officers stopped D coming off a flight with another man. They illegally searched them and found cocaine. On cross examination, D denied having any involvement with the transportation of the cocaine. He was asked a specific question about the other mans secret pocket and lied. The Court held that illegally obtained and excluded evidence may be used to impeach a defendant on cross-examination if he opens the door with a lie.. a. Critics feel that Havens limits defendants ability to testify because it opens up the door to the jury seeing illegally seized evidence. b. Policy is to not let Ds get away with perjury. v. James v. Illinois (1993). Illegally seized evidence may not be used to impeach defense witnesses. b. Fruit of the Poisonous Tree Doctrine i. The underlying issue in the fruit of the poisonous tree doctrine is how far is suppression extended beyond the immediate product of the illegal search? ii. Wong Sun v. U.S. (1963). Because of an arrest not supported by probable cause, the PD illegally interrogated Blackie Toy. In the illegal interrogation, Toy said drugs came from Yee. Yee said he got the drugs

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WEINER ON CRIMINAL PROCEDURE from Wong Sun. PD arrested Wong Sun. Drugs and statements from Yee were entered into evidence against Toy. Later, Wong Sun came back and signed a confession. The first issue; can the PD use information from the illegal search of Blackie Toy against Wong Sun? The Court held that the fruit of the poisonous tree doctrine goes downstream and only protects the initial suspect whose rights were violated. a. Wong Sun has no standing here because his rights were not violated. b. However, the police never would have found out about Yee and Sun if it was not for the illegally obtained statement from Toy. Yee and Toys statements are suppressed as fruit. However, the Suns statements that implicated Toy came several days later when Sun returned and confessed. The taint from being the fruit of the poisonous tree can be cleansed if the source of the fruit evidence is distinguishable enough via enough time or independent sources. iii. Brown v. Illinois (1975). D was arrested without probable cause. He confessed twice after receiving Miranda warnings. The lower courts held that the confession was too attenuated from the illegal arrest to be suppressed as a fruit, and that the taint of an illegal arrest was cleansed from the confessions via Miranda, permitting subsequent confessions to be used against D? The taint of an illegal arrest may not be cleansed by giving Miranda warnings before confessions. The confession was too close to the illegal arrest to be properly attenuated. iv. New York v. Harris (1990). D confessed in the police station following a warrantless in-home arrest in violation of Payton v. New York. The confession was made an hour after the arrestD had received Miranda warnings and waived his rights. D challenged the statement. The Court held that there is not a sufficient connection between the confession and the Payton-violative warrantless arrest to keep the confession out as fruit of the poisonous tree. N.Y. In New York, the Court of Appeals has held that under state constitutional law, the right to counsel attaches as soon as the police goes to get an arrest warrant. Therefore, since you have counsel, the PD cant Mirandize you and try to get consent/confession. a. In New York, any evidence or confession related to a Payton violation requires suppression. v. U.S. v. Ceccolini (1978). Although lead to a live, willing witness that is the fruit of the poisonous tree will not generally prevent the witness

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WEINER ON CRIMINAL PROCEDURE from testifying, inanimate evidence that is fruit will not be admitted absent exception. The witness being willing to testify breaks the causation chain of fruit of the poisonous tree. This is analogous to the consequence of Miranda violations that give rise to evidentiary leads. vi. Nix v. Williams (1984). The Christian-burial guy led PD to the body in violation of his Sixth Amendment right. The independent source doctrine admits evidence initially discovered during an illegal search if the same evidence has an independent source that is untainted by the initial illegality. The Court held that even in the absence of an independent source, if evidence would have been inevitably discovered anyway, it is admissible even if illegally obtained. a. This is a question of fact for the trial judge during the suppression hearing. In Nix, there was a search underway for the body. It was called off when the D led PD to the body. However, the search inevitably would have discovered the body. vii. Murray v. U.S. (1988). PD had been watching D and co-conspirators in a drug investigation. They illegally went into a warehouse after D left. They then left, kept the warehouse under surveillance, and did not re-enter until they got a search warrant. In applying for the warrant, PD did not mention the prior entry or rely on any observations from the first entry. D moved to suppress the drug seizures from the warranted search. The Court held that if officers do an unlawful initial search but can justify it with a plausible explanation, the second search will be legal under the independent source doctrine if there is separate knowledge and information that create probable cause to support the warrant. viii. Segura v. U.S. (1964). A & B are investigating premises. A goes to get a warrant. While waiting, B enters and searches while A is gone. Information for warrant came from A. So long as the probable cause existed before the search and A had no idea that B is engaged in improper conduct; if proper conduct would have discovered the contraband, search is upheld. PD knew they were acting improperly. The warrants supporting information must be completely independent of anything found in the place searched. ix. U.S. v. Madrid (8th Cir. 1998). PD arrested D on the street for drug charges. Before obtaining a search warrant for Ds house, PD searched the

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WEINER ON CRIMINAL PROCEDURE house as another agent went for a warrant. Also, information from the initial search was included in the warrant. The court held that confirmatory searches and agents exploiting their time in an unauthorized area will not be rescued by the independent source doctrine. x. U.S. v. Brown (7th Cir. 1995). The government has attempted to expand inevitable discovery into warrantsnamely, we had probable cause and we would have gotten the warrant. Courts have rejected this as undermining the strength of the warrant clause. c. Searches Made Pursuant to a Defective Warrant and Good Faith i. U.S. v. Leon (1984). PD thinks he has probable cause to search for drugs. He does not search and instead goes to get a warrant. A neutral magistrate issued the warrant. It turned out that the magistrate was wrong and the warrant lacked probable cause. What happens now after a search pursuant to a bad warrant, even though the PD did everything that they were supposed to do? The Court held that under the federal Constitution, if the police rely on a magistrates determination of probable cause, and act in objective good faith in obtaining and executing that warrant, the search is constitutionally valid even if it turns out that the warrant is defective. a. This is founded on the policy that there is no historical or policy justification to punish the police for the magistrates error. i. Deterrence by suppression is done for deterring the cop. N.Y. In New York, if the warrant is defective in any way, the searchs results are suppressed. a. This is founded on the risk of the magistrate as rubber stampthe defective affidavit is a product of the cop. i. Really, most warrants in New York are obtained through the ADA. ii. There is no good faith under Leon and the fruits of the search will be suppressed if: The cop knew there was no probable cause. The facts in the affidavit are so lacking and pathetic that any reasonable cop would know that there is no probable cause. The warrant is invalid on its face. a. E.g., facts in affidavit are about a clearly different address than that on the warrant. PD intentionally lied in the affidavit.

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WEINER ON CRIMINAL PROCEDURE a. U.S. v. Johnson (8th Cir. 1996). PD checks out a tip, finds it not entirely one hundred percent good. However, he says it was fine. i. PD will not be held to syllogistic precision on the affidavits. iii. U.S. v. Vigeant (1st Cir. 1999). The affidavit did not mention the informants criminal history/unreliability, that the suspect filed documents that were clearly inconsistent with the accused act of money laundering, said what was a stripped down dinghy was a luxury pleasure boat, and made up a marijuana transaction that the informant did not witness. The court held that an affidavit is misleading enough so that the Leon good faith exception will not apply when the affidavit contains false and misleading statements, with intentional or reckless omissions. Misleading7 factors on (539). This case shows how bad an affidavit has to be before it will be stricken by the courtsit really has to contain proven lies. a. Many affidavit problems focus on omissions, misleading statements, or misrepresentations about informants. iv. Franks v. Delaware (1978). If the defendant can prove that the affiant officer executed the affidavit with deliberate falsehoods or reckless disregard for the truth, he is entitled to a hearing on the warrant application if the remainder of the warrant does not furnish probable cause. At the suppression hearing, the fruits of that search may be suppressed as in violation of the Fourth Amendment.

6. McCray v. Illinois (1967). The informants privilege permits the government not to release the identity of the informant to the defendant. a) The judge may order the prosecution to release the name of the informant in order to determine whether or not the officer lied on the affidavit. (1) This may be done in camera. i. It is not important enough to jeopardize the informants safety by revealing names for the purpose of investigating probable causethe real issue is guilt or innocence. ii. Finding out about informant can be hardmost of the time D does not know. In federal court, the informants name can come out for purposes of proving guilt or innocence but not probable causethe D must show that informant has some exculpatory evidence. a. N.Y. New York courts remain very hesitant to release informants identities to defendants.

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WEINER ON CRIMINAL PROCEDURE d. Standing i. Standing is the legal interest in a situation that allows you to go into court to vindicate a legal interest or right that has been violated. This keeps officious meddlers out of court and is founded in the case or controversy requirement. ii. The standing issue in criminal procedure is do you have a right to go into court and complain about police misconduct? The most obvious way to have standing is if your personal right is violated. iii. Jones v. U.S. (1961). This was the old Warren Court rule that gave anyone legitimately on the premises when the search occurred or the accused defendant automatic standing to challenge searches and seizures. iv. Rakas v. Illinois (1978). PD pulled over an alleged getaway car after a robbery. PD found ammunition and a sawed-off rifle under the seat in the passenger compartment. Can standing be established in the absence of ownership of the seized property? The Court held that a person must have a legally enforceable reasonable expectation of privacy in the area where the alleged Fourth Amendment violation occurred in order to have standing to challenge the alleged violation in court. a. A key inquiry is the nature of the relationship between the D and premises. i. E.g., a reasonable expectation of privacy in a phone booth. b. N.Y. This narrowed rule of standing is accepted in N.Y. This Rehnquist opinion undermined the old Jones rule and as an intellectual tour de force, it used the old rules justifications to show that it needs to be changed in light of present reality. a. The reasonable expectation of privacy is now the core of the Fourth Amendment, not just possession. b. Rehnquist used this expansion of substantive rights to reduce the procedural right of standing. v. U.S. v. Salvucci (1980). The automatic standing doctrine of Jones was officially overruled. Rawlings v. Kentucky (1980). D owned drugs that were in a womans purse. The purse was searched and seized. a. Because D has no legitimate expectation of privacy in someone elses purse, he has no standing to challenge the search.

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WEINER ON CRIMINAL PROCEDURE vi. Alderman v. U.S. (1969). The target of a search does not get automatic standing. vii. Minnesota v. Carter (1998). D tried expanding the reasonable expectation of privacy theory of Rakas to being there for the purposes of the owner, such as business. This was an attempt to re-expand rights. Did not get a majorityeffort failed. Carter is factually a bad case for the defendantthe guys sitting were there cutting cocaine in someone elses house. viii. U.S. v. Carter (6th Cir. 1994). A car was stopped and illegally searched by the PD. D was the passenger. Driver has standing. How about passenger? Does a passenger have a reasonable expectation of privacy? The court held that a passenger in an illegally detained and seized car has standing under Rakas to challenge the seizure of his person but not the search of the car. ix. U.S. v. Padilla (1993). Co-conspirators do not have automatic standing. x. Anything may be used as evidence in a civil case, regardless of whether or not it was illegally seized by the PD. e. Suppression Hearings i. Simmons v. U.S. (1968). A defendants testimony about standing or other Fourth Amendment issues at a suppression may not be used against him at trial on issues of guilt or innocence. This prevents a sacrifice of Fifth Amendment interests to protect Fourth Amendment interests. U.S. v. Beltran-Guttierez (9th Cir. 1994). Suppression hearing testimony may be used as a prior inconsistent statement to impeach defendants credibility while giving his trial testimony. ii. A magistrates probable cause determination will be given great deference on appellate review. iii. The statute 18 U.S.C. 3731 permits the government to appeal from a suppression order if the defendant is not yet in jeopardy, if the appeal is not for the purpose of delay, and the suppressed material must be substantial proof of a fact material to the proceedings. 9) FOURTH AMENDMENT AND SURREPTITIOUS OR ELECTRONIC SURVEILLANCE a. Basic Considerations

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WEINER ON CRIMINAL PROCEDURE i. Is wiretapping a search or a seizureit is not like physically going into someones house or arresting themit is cutting and splicing wires that are hundreds of feet or even miles from the building. ii. The old rule of Olmstead v. U.S. (1928) utilized trespass as the determinative concept. It held that a wiretap was not within the Fourth Amendments protection because the defendants property was not entered or trespassed upon. This was reflected in Goldman v. U.S. (1942) where the Court found no Fourth Amendment violation in the use of a Detectophone recorder placed against an office wall. Silverman v. U.S. (1961). This decision started the turn away from the trespass doctrine. a. The Court condemned eavesdropping by law enforcement and held that a microphone spiked into a wall was an intrusion into a constitutionally protected area. iii. There are two main term of art definitions here: Bugging is using a planted recording device on a person or place the bug picks up whatever is said near it. Wiretapping is interception of both sides of a conversation by cutting into the line. iv. Katz v. U.S. (1967). The new rule is that the Fourth Amendment will apply to electronic surveillance whenever a persons reasonable expectation of privacy is violated. b. Undercover Agents i. Lopez v. U.S. (1963). An IRS agent wore a wire to meet the D who had offered him a bribe earlier. The Court held that Fourth Amendment protections are not implicated when a government agent surreptitiously records a conversation with a suspect. a. The agent would be allowed to talk about it anywaythe tape ensures the best possible evidence. ii. Lewis v. U.S. (1966). An undercover was invited to Ds home by the D to buy some drugs. The officer got there and the sale was made. The Court held that the home will receive no special Fourth Amendment protection when an undercover is voluntarily invited in for a business or criminal transaction. iii. Hoffa v. U.S. (1966). D was convicted for attempting to bribe jurors in a previous trial. The governments case largely depended on a rat who, as an

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WEINER ON CRIMINAL PROCEDURE agent, then spent a lot of time with the D, who voluntarily permitted him to hang out thinking that he was a friend. The Court held that misplaced confidence by a criminal D in a rat or undercover is not a Fourth Amendment violation when the informant was present for the conversations legally. c. Wiretapping and Electronic Surveillance i. Berger v. New York (1967). PD was investigating alleged bribery of liquor officials. They obtained an order to eavesdrop pursuant to state statute. The statute was very general in scope and permitted eavesdropping or wiretapping on reasonable grounds that a crime was being committed. The Court held that wiretapping or electronic surveillance is fully within the purview of the Fourth Amendment. It must be supported by a warrant with reasonable particularity including the crime committed, descriptions of the conversations sought, and the duration of the wiretap that meets probable cause requirements. ii. Wiretapping and bugging are governed by statute18 U.S.C. 25102520. An application to wiretap or bug must be made to a judge by an Attorney General, Assistant Attorney General, or their designee. The judge needs probable cause to issue the warrant that the individual named is committing or will commit a particular offense and that the communications are in a specific area. a. Proof is also needed that normal investigative procedures have been tried or are futile/dangerous. The government may only intercept communications until they get what they are looking forthe government must minimize listening to unauthorized conversations. a. The warrant is good for thirty days but can be renewed fairly easily. In an emergency (activity likely to result in death, national security problems, or organized crime), the prosecutor may intercept communications if he reasonably believes he has probable cause and applies for a warrant within 48 hours of that determination. iii. During execution of a bugging warrant, illegal things that are found incidentally may be seized if they are in plain view.

The wiretap tapes must be sealed away immediately. A tap requires probable cause + all other investigative methods have failed or are known to be futile.

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WEINER ON CRIMINAL PROCEDURE 10) DISCOVERY IN CRIMINAL CASES. a. Constitutionally Mandated Discovery i. Discovery in criminal cases is very limited compared to discovery in civil cases. ii. Brady v. Maryland (1973). Prosecutor held a confession from Ds accomplice that he committed the murder that D was accused ofhe refused to turn it over when Ds lawyer asked him about the accomplices statements. Upon request by the defense, the prosecutor must turn over all exculpatory or mitigating evidence. iii. Giglio v. U.S. (1972). One U.S. attorney made a deal with an informant for testimony. The case was tried by a different prosecutor. At trial, the informant denied having a dealthe trial prosecutor did not know that this testimony was false. The Court held that the obligation to disclose extends to information not personally known by the prosecutor--knowledge of exculpatory evidence is imputed to the entire prosecution team, not just an individual. N.Y. New York even holds the government responsible for turning over information known by the police but not the prosecutor. iv. U.S. v. Agurs (1976). D stabbed and killed a man. P had information about the victims violent past that would have supported the Ds self-defense argument. Ds lawyer made a request for all Brady material but did not receive this information from the P. The Court held that a general request for Brady material entitles the defense to any information that is material, which is defined as creating a reasonable doubt by itself. a. If there is no reasonable doubt about guilt with this material omitted, a new trial is not justifiedthe verdict generally needs questionable validity. Here, the D was unscathed and the victim had multiple wounds evidence that by itself pokes holes in the self-defense argument. v. U.S. v. Bagley (1985). D was convicted of drug charges. He learned after his conviction, despite a Brady motion to discover any deals between witnesses and the government, that the principal witnesses were paid for undercover work. The Court then redefined the materiality standard as applied to withheld evidence: The Court held that suppressed evidence is material if there is a reasonable probability that the proceedings outcome would be different had the evidence been disclosed to the defense.

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WEINER ON CRIMINAL PROCEDURE A reasonable probability is probability sufficient to undermine confidence in the proceedings outcome. Evidence that would impeach government witnesses may be material for Brady purposes. b. Discovery by the Prosecution i. Williams v. Florida (1970). If a defendant essentially wants to present an insanity or alibi defense (both of which are essentially affirmative), the defense may be required to notify the prosecutor of that intent so as to permit prosecutors discovery, essentially witness contact lists. This does not violate the Fifth or Fourteenth Amendments. Also, P must share his rebuttal evidence with D. ii. FED. R. CRIM. P. 16 requires reciprocity of discovery if the defense requests anything beyond the Brady requirements, such as expert witnesses. E.g., If D requests the Ps expert testimony, then D has to give the same to the P. c. Statutorily Mandated Discovery i. If the defendant has already requested similar items from the prosecution, FED. R. CRIM. P.16 gives the prosecutor: Documents and tangible objects within the defendants control that are intended for use at trial; Examinations and tests that are intended for use at trial; and A written summary of the expected expert testimony at trial. ii. 18 U.S.C. 3500 (Jencks Act), later superseded by FED. R. CRIM. P. 26.2. Immediately after a witness other than the defendant testifies on direct examination, one party is entitled to receive any previously recorded statements by that witness on the subject matter of the testimony. Failure here can lead to striking the witness testimony, or a mistrial. This is done by motion and cant be ordered substantially in advancedone right before trial). In N.Y., this is called Rosario material. iii. In both federal and New York cases, names/address and other contact information for witnesses will not be released before trial. This is done to protect witnessessome were killed in New York. a. This doesnt happen often but is dramatic when it does. Florida permits pre-trial depositions of government witnesses. a.

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WEINER ON CRIMINAL PROCEDURE iv. The defense does not get the prosecutions theory of the case beyond what is contained in the indictment. N.Y.motion for a bill of particulars telling what everyone did, DA responds with theory of the case which they dont have to disclose. Federally, you get even less. v. Generally, criminal defense lawyers know nowhere as many facts as a civil lawyer (most dont have depositions to use to impeach witnesses you only get sketchy reports and some limited grand jury testimony). The high degree of repetition in crime fact patterns (only so many ways to rob a bank) also helps criminal defenders. Also, many government witnesses like informants and even cops have reduced credibility and biasit has been said todays victim is often tomorrows defendant. 11) GUILTY PLEAS a. Plea Bargaining and Pleading Guilty i. Most defendants who plead guilty have plea- bargained. Is a defendant who is promised a lighter sentence in exchange for a plea being coerced into giving up the constitutional right to a trial? ii. Openness, time, and counsel are what make plea bargaining OK, as opposed to a coercive PD interrogationalso the benefit of pleading guilty. Under FED. R. CRIM. P. 11, guilty pleas require an allocution of questions from the judge to ensure a factual basis for the plea. Plea bargains involve some time to decide and are made in open court with the assistance of legal counsel. Most defendants want to plea bargain because they are statistically likely to be found guilty at trial. a. The number of innocent defendants acquitted at trial is disproportionate because the defense attorneys usually plea bargain defendants who are likely to lose at trial. The defendant benefits because he will serve a lot less time by pleading guilty. iii. Problems arise when people change their minds. This happens because of the initial trauma of arrest, etc.they realize they made a mistake after they serve time. Jailhouse lawyers also may give more time and advice than appointed counsel. Witnesses disappear or drop dead. The law changes.

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iv. Henderson v. Morgan (1976). A 19 year-old D was mentally disabled and pleaded guilty to second degree murder. He was not advised that intent was an element in the murder charge. The Court held that for a guilty plea to be valid, the defendant must fully know and understand the legal situation he is in (articulating elements of pled offense as they apply to him)know what P has to prove to make D guilty. a. This is generally assured through the allocution that goes on the record. v. North Carolina v. Alford (1970) permits defendants to plead guilty without actually having to admit guilt, so long as there is some factual basis for the guilty pleathis is todays version of the no contest plea (of Steve Howe fame). This is called the Alford pleasome judges refuse to take them. vi. What if it is constitutionally impossible for D to be convicted of the crime that he is charged with, but does not know it because Court has not said so yet? Situations include statutes declared unconstitutional, or grand jury indictments being no good because improperly impaneled (race), or arrests later declared improper? Argue retroactivitythe law has always been there, it is being interpreted and not madebut retroactivity will only apply if the case is still on direct appeal. Argue knowledgeI improperly waived my rights because I didnt know that the statute was unconstitutional, until know. If statute is later invalidated, any guilty plea under it is invalid. If it is a procedural thing (arrest, jury)the plea stands. vii. N.Y. In both federal cases and in New York, the defendant may also use a conditional guilty plea. If the defendant makes a motion to suppress evidence that is denied, he may then plead guilty. If the denial of the motion to suppress is reversed on appeal, then the guilty plea may be pulled. viii. Another voluntariness issue arises with legislative plea bargaining, or the provision of lighter sentences via statute following a guilty plea when compared to sentence after trialif you plead guilty, you cant be executed statutes. Statutes allowing for guilty pleas to avoid execution are constitutional. a. However, the Supreme Court invalidated a statute that only allowed executions after jury but not bench trialsthey

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WEINER ON CRIMINAL PROCEDURE cant condition benefit on waiver of a jury trial alone if theyre still going to the expense of a trial. b. This is an illegitimate benefit. ix. If you dont plead guilty to X, I will indict you for Y. Sentence enhancement statutes for violent career criminals, etc. are examplesif you dont plead guilty, Ill seek that sentence. Court held that there is no difference between a promise and a threat. x. The allocution of FED. R. CRIM. P. 11 requires an exacting discussion of questions about law, promises, threats, rights, mental status, etc. to confirm Ds understanding before a guilty plea may be accepted. This may be to seal the deal for the governmentno appeals. b. Breaches and Can the Defendant Get the Plea Back? i. Defendants want their guilty plea back if witnesses die, etc. and theyve already accepted a plea and a sentence. Also, if they claim that their plea bargain was unknowingthey didnt realize the sentence would be as high as it was. This works in reverse, toosometimes the prosecutor wants the plea back also when good states evidence turns up. FED. R. CRIM. P. 32 permits withdrawal of the plea right up until sentencing so long as the defendant can provide a just and fair reason for doing so. a. This is very liberal and is often granted. FED. R. CRIM. P. 32 permits withdrawal after sentencing only if necessary to correct manifest injustice. a. This would generally require a showing that the plea was not fully knowing and voluntary. ii. U.S. v. Hyde (1997). D reached a plea agreement with P but the judge had not yet approved the entire agreement, although his guilty pleas were accepted in court. The Court held that if the plea agreement is deferred, the defendant may withdraw an accepted guilty plea if he can show a fair and just reason under Rule 32. iii. Santobello v. New York (1971). If the prosecutor reneges on a plea bargain, the defendant should be permitted to withdraw the guilty plea or demand specific performancewhatever defendant wants because his rights have been violated. Remedies for a prosecutor reneging are re-plea or specific performance.

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WEINER ON CRIMINAL PROCEDURE Prosecutors violate plea bargains if they say they will recommend an agreed-upon sentence and then do not make the recommendation. Judges also sometimes dont follow through with plea bargains and then violate the agreed upon terms. iv. Ricketts v. Adamson (1987). D was charged with first degree murder but agreed to plead guilty to second degree murder and to testify against his co-defendants in exchange for a designated prison sentence. The codefendants convictions were overturned by state appeals courts. D then refused to testify at the second trial unless conditions were met, including his release from jail. The state told D that he would be breaching. He then took the Fifth at the second trials, after which the state re-charged D with first degree murder. The Court held that when a defendant breaches a plea bargain agreement, the Double Jeopardy Clause does not prevent the state from re-charging and re-trying the defendant, even though he has already pled guilty. 12) THE CRIMINAL JURY TRIAL a. Basic Constitutional Right i. Duncan v. Louisiana (1968). D was convicted of misdemeanor battery by a bench trial. His request for a jury trial was denied because Louisiana only provided jury trials for crimes with more than two years imprisonment. The Court held that a jury trial is constitutionally mandated under the Due Process Clause when the authorized sentence is greater than six months. ii. The Constitution prefers trial by juryit seems to legitimize the result, even if it leads to occasional factual errors. b. What Constitutes a Jury and a Proper Verdict? i. The 19th Century definition of a jury was 12 men unanimous, tried and trueto reach a fair conclusion on the issue. This is no longer necessarily true. a. The changes developed because of difficulty in finding 12 impartial people in some cases. Juries of six people developed in criminal charges--many states had already done this for civil trials. ii. Williams v. Florida (1970). D filed a pretrial motion to impanel a 12 person jury instead of the 6 person jury provided by law in Florida in all

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WEINER ON CRIMINAL PROCEDURE but capital cases. Ds motion was denied and he was sentenced to life imprisonment for robbery. The Court held that the Sixth and Fourteenth Amendments do not require twelve person juries. a. Studies show no real discernible difference in the results reached by six vs. twelve member juries. iii. Ballew v. Georgia (1978). D was convicted of obscenity charges by a five person jury. He challenged the jury size. The Court reversed the conviction, holding that the Sixth and the Fourteenth Amendments require at least six people on criminal juries. In the opinion, the Court discussed studies of juries decisionmaking processes. iv. Apodaca v. Oregon (1972). The Ds were convicted by three separate, nonunanimous juries, two of which returned with 11-1 votes, the third came back with the minimum 10-2 verdict. The Court held that unanimous verdicts in criminal cases are not a constitutional requirement. This was rejectedeven criminal juries do not need to be unanimousa 9-3 (75%) jury was held to be sufficient for a verdict. a. Douglas dissentedsaid it helped the prosecutor. Powells dissent called in non-fundamental. b. Most states and FED. R. CRIM. P. 31 still require unanimous juries. v. Burch v. Louisiana (1979). The Court held that a six person jury must reach a unanimous verdict in a criminal case in order to maintain the effectiveness of the jury trial right. vi. Hung juriesJurors used to be starved, etc. until verdictled to very few hung juries. This changed. Now, Ds wanted hung juries to be an acquittalper se reasonable doubt. U.S. culture does not like ties. Hung juries are do-oversthey dont count and are not per se reasonable doubt. c. Special Scenarios i. Nomenclatureare all crimes created equal? What about juvenile delinquency? We dont actually call it a crime, but kids can still be put away in detention centers. N.Y. Juveniles in New York are anyone under the age of 16 and are charged with what would be a crime.

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WEINER ON CRIMINAL PROCEDURE The jury trial right does not apply in juvenile courts, even if the authorized sentence is greater than six months. a. This is because of the rehabilitative nature of the process with different facilities + shorter sentencethe parens patriae goal of the proceedings. In re Gault (1967). The rights of counsel and Miranda do apply in the juvenile court context. ii. Criminal contempt is the only remaining common law crime. The judge can impose any sentence he wants. Summary contemptjudge automatically finds you in contempt and sentences you. a. Only real defendants right here are the rights to appeal and get bail for the appeal. Other contempthearing + sentence. Under an actual sentence standard for criminal contempt, if the judge wants to impose a sentence for more than six monthsD gets a jury trial. If the sentence will be 6 months or lessno jury trial. a. There are not many facts to litigate in contempt trials. d. Waiver of the Jury Trial Right i. A jury trial must be waived openly and with actual knowledge. N.Y. In New York, a jury trial is the defendants constitutional righthe has the exclusive power and authority to waive it. Federally, the prosecutor must agree to the Ds decision to have a non-jury trial. ii. Also, you cant be forced to waive a jury in exchange for no execution. e. The Jurys Role i. One view is legalisticthe jurys role is to decide the facts via determining witness credibility and applying the law as given by the judge. No data showing that juries are any better at this than judges juries often do actually make mistakes. Theyre not better than anyone else at determining if a witness is telling the truth, either. ii. Kessler says the most important thing juries do is acquit guilty people, through jury nullification. This is a tempering of legislators carried awaywhen the penalty in England for all felonies was electrocution. a. It used to be impossible to convict people for DWI.

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WEINER ON CRIMINAL PROCEDURE b. Problems develop in communities who hate the government and the policeespecially when a cop is the only witness. The risk is that juries can also convict innocent people based on racism or outrage at the crime itself. a. This has probably occurred more than acquittal of guilty people. Jury nullification also keeps the prosecutors from having these problemsthrough the grand jury who wont have to issue indictments. iii. Maryland has a statutorily mandated jury nullification charge. Federally, there is no mandatory jury nullification instruction. What they do on their own is their own business. f. Selecting the Jury i. Holland v. Illinois (1990). The jury must be chosen from a pool that represents an unbiased fair cross-section of the community and be chosen via an unbiased selection process. The fair cross-section requirement does not apply to the actual petit jury that is chosenonly the venire from which it is chosen. Blue ribbon juries of college educated people for difficult cases are unconstitutional. ii. Duren v. Missouri (1979). To show a violation of the fair cross-section requirement, a defendant must show: The group excluded from the array is a distinctive group. a. U.S. v. Fletcher (9th Cir. 1992). A distinctive group is one which has a defining and limiting factor (like race or sex), with a common thread or basic similarity in ideas or experience, and that the groups interest would not be adequately represented if excluded. The representation of the group in the venire from which the jurors are selected is not reasonable in relation to the rest of the community. The underrepresentation is a result of systematic exclusion in the process. iii. There are several different challenges to juries: The entire venire may be challenged in its breadth and scope, in light of Holland. a. Alabamas requirement for women to opt-in was deemed unconstitutionalno special preferences or prejudices are permitted.

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WEINER ON CRIMINAL PROCEDURE The panel that is randomly selected from the venire may be challenged for cause. a. Challenges for cause include bias or knowledge of the facts. Members of the panel that is randomly selected to be the jury may be challenged with peremptory challengesfree elimination of jurors by lawyers at their pleasure. a. These have a vital role in the system because they keep people off like ex-cops you really dont want them but they dont qualify for cause. i. The game of stereotypesex-cops, etc. iv. Batson v. Kentucky (1986). Prosecutors used to use peremptory challenges to keep minorities off juries. The Court held that it is now unconstitutional for prosecutors to use peremptory challenges for the purpose of systematically excluding racial minorities. a. This holding includes women and all groups considered minorities for the purpose of government programs. Reverse-Batson by the defense is also unconstitutional. Batson is primarily an equal protection right for the juror and it applies in civil cases as well. a. Powers v. Ohio (1991). The criminal defendant has third party standing to protect the jurors Equal Protection rights by challenging the jury selection under Batson. Batson has a switching burden of proof that complicates things lawyers can always find a way to rationalize them. a. Batson itself mentions patterns of exclusioncant really object to 1-2 exclusions (in practice object to the 1st one) the pattern is circumstantial evidence of the intent. b. The objector must prove racially based exclusion. The defender must then rebut that by proving legitimate reasons for the exclusion. v. Hernandez v. New York (1991). A Hispanic D claimed that P excluded Latino jurors because of their race. However, part of the evidence would be translated tapesthe P argued that the Latino jurors would have undue influence in the jury room and possibly subvert the official translators. The Court accepted this, holding that a race-neutral (based on something other than the jurors race) explanation will rebut the defendants prima facie Batson claimdisparate impact does not itself violate the race-neutrality rule. 13) GRAND JURY OPERATIONS

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WEINER ON CRIMINAL PROCEDURE a. Introduction i. The grand jury has two purposes: Investigate to see if a crime had been committed; also, a. Grand juries have subpoena power through the prosecutor. Determine if there is probable cause to return indictments or justify holding someone and return an indictment. ii. Indictments require probable cause. iii. Subpoenas are not restricted by the Fourth Amendmentyou can move in court to quash the subpoena. Litigate before producing. iv. Grand juries consist of 23 people selected from the standard venire. A quorum of 16 is needed to function.

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Indictments require 12 votes, regardless of how many grand jury members are present. a. Indictments are also known as issuing a true bill. v. Hurtado v. California (1884). The Fifth Amendment right to indictment by grand jury is constitutionally binding on the federal government but has not been incorporated to bind the states. Most states utilize the options of informations and preliminary hearings instead of mandatory grand jury indictments. vi. Chief Judge Wachtler once said a prosecutor can get the grand jury to indict a ham sandwich. Sometimes, runaway grand juries indict people who the prosecutor doesnt want to indict, because of lack of evidence for later at trial, or because they are cooperators. vii. Times have changedthere are many instances now in Brooklyn, and the Bronx where grand juries are not coming back with indictments. b. Defense Operations in the Grand Jury i. Counsel may attempt to put on a defense in the grand jury. N.Y. In New York, the defendant has the right to testify in the grand jury. a. Choose sympathetic cases, like drug possession and weapons possession where only witness is a copfeed on the hostility to the PD. i. Prosecutors and PD are more overworked and underprepared today than they used to be. ii. Grand juries get rid of cases that society doesnt want to prosecute. ii. Grand jury proceedings are secretonly the prosecutor, the grand jury, and a reporter are present with the witness. All deliberations are secret. iii. There is no right to free, appointed counsel at the grand jury stage. iv. Conn v. Gabbert (1999). A grand jury witness has no constitutional right to have an attorney present during grand jury proceedings. No attorneys are permitted inside the jury room. a. Consultations occur outside the room. v. N.Y. By statute in New York, targets who are subpoenaed to the grand jury may bring counsel into the jury room with in them as they testify.

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WEINER ON CRIMINAL PROCEDURE In New York, people must be notified that they are targetsif not notified, their Fifth Amendment interests are protected by transactional immunity. The attorney may not say anything during the grand jury testimonyit is not an adversary hearing. c. Evidence Presented to the Grand Jury i. U.S. v. Calandra (1974). Except for wiretaps (by statute), illegally seized evidence may be used at the grand jury as the exclusionary rule does not apply there. There is no procedural way to suppress things, etc. at the grand jury without an indictment having been issued. Move afterwards to quash the indictment. The Court has ignored the traumatic aspect to being indicted. ii. U.S. v. Williams (1992). Federally, suspects have no right to have even substantially exculpatory evidence presented to the grand jury. This analysis is based on the grand jurys executive branch prosecutorial function. N.Y. In New York, prosecutors may not badger witnesses or slant the evidence, and they must present exculpatory evidence to the grand jury. a. The indictment may be quashed if this rule is violated. iii. Federally, an indictment may be based on hearsay. N.Y. New York requires direct, non-hearsay evidence to sustain indictments. iv. Representing the casecan a prosecutor re-present a case to different grand juries if he hasnt gotten indictments. Not double jeopardy for constitutional purposes. Federally, cases can be represented, but NY only permits it with judge permission + newly discovered evidence. Bernie Goetz case; possibility of a self-defense case. He was indicted for weapons possession but not murder/attempted murder. a. Can they re-present when a kid agreed to testify, even though he refused to the first time because prosecutor didnt give him immunity? b. Even though the evidence was in the prosecutors control, he was still permitted to re-present.

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14) FAIR TRIAL AND FREE PRESS a. Introduction i. There is a conflict between the First Amendment and the Fifth Amendment due process clause. The press wants to report on an arrest and trial, but when they dopotential jurors read the stories. This contaminates the decision maker and wrecks the fair trial via publicity. The British strictly prohibit any publication of information about pending casesafter an indictment is issued, no more information may be published about the case until it is resolved. a. They have no 1st Amendment b. Canada follows the English systemcreates an occasional international problem because American TV stations are received there, and sometimes report on Canadian crimes. ii. Most First Amendment vs. Fifth Amendment situations are resolved in favor of the First Amendment and the press. Contamination isnt really a problem. b. Judges Authority to Ensure a Fair Trial i. Sheppard v. Maxwell (1966) (also known as The Fugitive case). MD was accused of killing his wife in Chicago. There was huge publicity in newspapers. It was saturation of the O.J. Simpson level. There were stories before and during the trial. Also, the press was in the courtroom being noisy. The jury was not sequestered and read all of the stories, many of which were untrue. The Court held that trial judges are responsible for controlling the press, controlling the release of information, and insulating the witnesses in order to ensure defendants right to a fair trial. a. Core issue is the influence of the jury. Deal with jurors knowing too much during the jury selection some call this destructive because you find hopelessly uneducated idiots as a jury. Also, sequester the juryhowever, sequestration is happening less due to its high inherent expense. ii. U.S. v. Cutler (2d Cir. 1995). John Gottis lawyer was convicted of criminal contempt for violating a gag order that prohibited statements from counsel that would pose a reasonable likelihood of interfering with a fair trial. The lawyer gave press and TV interviews, claiming that Gotti was being unfairly persecuted and that he was a legitimate businessman.

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WEINER ON CRIMINAL PROCEDURE The court held that gag orders on court personnel, the litigants, or witnesses that are narrowly tailored to the circumstances of the instant case will be upheld to enforce the defendants right to a fair trial. a. Prosecutors can play dirty by issuing a huge press release after the indictment and then moving for a gag order before the D can respond. b. Litigants can get press without violating a gag order by filing motion papers because they are public record. i. The papers may contain scattered statements about the unconscionable conduct of the prosecutor. iii. Gannett v. DePasquale (1970). The Court, in this overruled case, held that the judge may ban the press from the courtroom on the defendants motion. This is based on the proposition that the D can waive his right to a public trial. This decision routinely barred the press from courtrooms nationwide. C.J. Burger spoke about what a problem this became iv. Nebraska Press Assn v. Stuart (1976). PD found a family murdered in a small town in an infamous case. After the suspect was arrested, the judge granted a joint motion by the prosecutor and the defense lawyer asking that public dissemination of any information about the case be forbidden. The Court held that prior restraint by banning the press from printing stories about a pending case is presumptively unconstitutionalfor prior restraint to be upheld, the virtually impossible test of no less restrictive or effective alternatives beyond prior restraint must be met. a. Basically, prior restraint of the press in criminal cases will never be found permissible. v. Richmond Newspapers, Inc. v. Virginia (1980). The press and the public have a limited right of access to criminal trialsthis courtroom access may not be restricted unless there is a: Specific reason for closing the court stated on the record. Closure is the only way to protect a partys interest. No reasonable alternatives to closing the proceeding. a. The trial court must support this with specific findings. b. Generally, this must be considered on a case-by-case basis, such as with minor sex crimes victims. vi. Chandler v. Florida (1981). Florida had a court rule encouraging TV coverage of proceedings unless the coverage would cause problems with

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WEINER ON CRIMINAL PROCEDURE the trial. Ds, who were policemen, were accused of breaking into a restaurant. They argued that televising the proceedings denied them due process. The Court held that TV cameras are now permitted in the courtroom so long as they do not have an adverse impact on the trial participants that is sufficient to deny the defendant due process. a. The question is whether televising proceedings changes the conduct of the people involved and therefore, the outcome. New York has been very hesitant to allow TV in the courtroom. c. Venue i. Venue used to be changed all the timemove a trial from Suffolk to Westchester, or from NYC to Albany like the 4 cops in the Diallo case. The problem now is that TV is regional. Now, all a change in venue does is impanel a different jury and impose different logistical difficulties. 15) THE DOUBLE JEOPARDY CLAUSE a. Introduction i. The vague language of the Double Jeopardy Clause of the Fifth Amendment provides that no person [shall] be subject for the same offense to be twice put in jeopardy of life or limb. ii. This language leads to several questions that need to be resolved. What is same offense? a. Jurisdiction, retrial, technically different charges. What is subject, and to whom? a. Who does this apply tostate, federal, or local? What does it mean to be put in jeopardy? What is the impact when jeopardy does attach? b. Put in Jeopardy and Dual Sovereigns i. Crist v. Bretz (1978). The Pennsylvania statute said that jeopardy attached when the first witness was called. The Court held that in federal and state proceedings, jeopardy attaches for Fifth Amendment purposes when the jury is impaneled and sworn. The Double Jeopardy Clause is about reducing harassment by process, but it is also based on the right to a juryit gives you the right to a decision by the jury that you have selected. a. This is a vested interest in the jury.

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ii. Heath v. Alabama (1985). What about federal vs. state charges, or two different states. D is charged with conspiracy in N.Y. and N.J.same charge. Acquitted in N.Y. and then prosecuted in N.J. D claimed double jeopardy. Court held that two different independent sovereigns can prosecute for the same offense without violating the double jeopardy rule for these purposes, two different states are each individual sovereigns. a. The same rule applies to the federal government, who can prosecute a person acquitted by the state court. Questions arise with the joint task forces. iii. N.Y. New York has a statutory protection for defendants and will not prosecute people after they have been indicted federally. c. What is the Same Offense? i. Brown v. Ohio (1977). D steals a car on June 1 and is caught on June 5. He is convicted of misdemeanor joyriding (borrow a car) on June 5. P now wants to prosecute for felony car theft (intent to keep) on June 5. P says not the same offensethus, no double jeopardy. The Court applied the established test of Blockburger v. U.S. (1932): The Court held that both offenses must have rule elements not found in the other in order to be considered separate offenses. a. Joyriding and car theft share elementstherefore, there is double jeopardy. b. This applies to lesser-included offenses. ii. Grady v. Corbin (1990). D in MVA is charged with and convicted of drunk driving. D is later charged with manslaughter from the same MVA. The two offenses each have different elements, so the Brown-Blockburger test does not bar prosecution. The Court held, in a short-lived law, that even if they pass the Brown-Blockburger test, offenses are the same crime for double jeopardy purposes if they arise from the same conduct. iii. U.S. v. Dixon (1993). The Court overruled Grady and held that BrownBlockburger is the applicable test for same crime in double jeopardy cases. d. Acquittals i. Ashe v. Swenson (1970). D acquitted of felony murder of A. D is then recharged with robbing B in the same crime.

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WEINER ON CRIMINAL PROCEDURE To use double jeopardy and avoid retrial on charge 2 after acquittal on charge 1, the defendant must prove that there is a reasonable probability that a fact needed to prove the second crime charged was one that was not proven in the first trial by the prosecution. a. No 2d bite at the apple for the P. The burden of proving what the jury failed to find is on the defense. a. Although you cant ask the jury, defense counsel should look at the transcript/summations, cross-examinations, and issues identified by the defendant in the opening. b. Try to isolate the seriously litigated issue + the judges charge to the jury. HYPOTHETICAL: D is charged with a burglary charge that he entered with intent to rape a woman inside. The rape did not happen. If he was found not guilty of attempted rape, can D be charged with the burglary, or vice versa? a. Double jeopardy bars this prosecutionhe was found not guilty of the felony therein,therefore, that element of the burglary charge cannot be made out. e. Aborted Trials and Manifest Necessity i. There are two kinds of aborted trials: Mistrial. a. Jeopardy attachesthe jury has already been impaneled. b. Mistrials are caused by: i. External forces, such as hung juries, natural disasters, etc. = manifest necessity to end the trial. ii. Case processing problems/mismanagement, such as missing witnesses, a sick judge iii. Error. Directed verdict or dismissal. a. A case may be dismissed early if the D wins the preliminary hearing or if the indictment is no good (improper venue, etc.) i. This can be re-charged immediately because jeopardy did not attachno jury was impaneled. b. Directed Verdicts may occur either before or after the jury verdict. ii. D will always argue, once there is a jury, there is double jeopardy. However, in the aborted trial context, double jeopardy protection does not always attach. U.S. v. Perez (1824). A hung jury does not count and therefore does not prevent re-prosecution on double jeopardy grounds.

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WEINER ON CRIMINAL PROCEDURE iii. Illinois v. Somerville (1973). D objected to the declaration of a mistrial when the judge concluded that the indictment was insufficient to charge a crime. D then objected on double jeopardy grounds when the prosecution re-charged him. When a mistrial is declared over the defendants objection out of manifest necessity to serve the ends of public justice, re-trying the defendant for that same offense is not prohibited by the Double Jeopardy Clausethe protection does not attach if there was manifest necessity for the mistrial. iv. Case processing problems are manifest necessity if they are not anticipatable. Dont start the trial if youre not sure you can complete itsudden illness is different. Missing witnesses: Is it a complete surprisemust be; you cant know about it. Incompetence can also create manifest necessity. v. If the D agrees to the mistrial, then there is manifest necessity. vi. Oregon v. Kennedy (1982). If a defendant moves for a mistrial, the manifest necessity rule will not be utilized and he may be retried per se, unless the prosecutors actions causing the motion were done to goad the defendant into moving for a mistrial. vii. Arizona v. Washington (1978). When a judge violates the Ds constitutional rights via an error: The Court held that if the error could have been taken care of on appeal without requiring a retrial, then the error can be cured at trialthere is no manifest necessity for the retrial. i. On appeal, reversals result in retrials unless it is on the ground for insufficiency of evidencethat = acquittal. ii. Appeal for insufficiency of evidence is appeal from denial from motion for directed verdict. b. There is a preference for curing errors during the trial because of judicial economy. If D can prove that the prosecutor intentionally caused a mistrial, then there is no manifest necessity and double jeopardy protection attaches. a. Done if trial goes badly for P, etc. viii. Fong Foo v. U.S. (1962). The Court held that if there is any determination by a judge on the merits or an acquittal via any kind of directed verdict, even if erroneous, the D is considered acquitted and double jeopardy protection will attach.

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f. Appeals i. Burks v. U.S. (1978). If the appellate court overturns a conviction because of evidentiary insufficiency, the Double Jeopardy Clause bars a retrial. ii. Lockhart v. Nelson (1988). If a conviction is overturned because of error by wrongly admitted evidence, then the prosecutor may re-charge and retry the defendant. g. Sentencing and Double Jeopardy i. North Carolina. v. Pearce (1969). D is convicted and sentenced to 5 years. The conviction is reversed. He is retried and sentenced to 10 years. The Court held that the Double Jeopardy Clause does not but the Due Process Clause does prohibit giving harsher sentences after retrials. a. This is to avoid the appearance of vindictiveness. Exceptions are if you kill someone while in jail or on bail between sentences 1 and 2. a. Also, juries can give harsher sentences the 2d time, except for death penaltythat they cant give. ii. Bullington v. Missouri (1981). After the penalty phase, the jury decided against giving a death sentence. D appealed and after a retrial, he was sentenced to death. He argued double jeopardy. The Court held that an initial jury finding of no death creates a double jeopardy barrier to re-litigating the death issue in a subsequent case. a. This is a determination of fact, much like an acquittal. iii. What if D is fined by an administrative agency and then charged with a crime for the same offense? D argued double jeopardyfine amounted to a criminal prosecution because it was high. The Court has held that civil is civil and criminal is criminal hasnt looked into determinations of punitive vs. compensatory.

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