FOURTH AMENDMENT ANALYSIS

Step 1 - Threshold Issues A. Is the activity a "search" or "seizure" within the meaning of the 4th Amendment? If "yes," go to the next issue. If "no," the 4th Amendment does not apply. Fourth Amendment -In general Fourth amendment provides that people should be free in their person from unreasonable searches and seizures -Search A search can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy - Seizure Can be defined as the exercise of control by government over a person or thing - Reasonableness Reasonable under the fourth amendment depends on the circumstances example, certain searches and seizures are considered to be reasonable only if the government has first obtained a warrant authorizing the action , while other searches are seizure are reasonable without a warrant -Reasonable expectation of privacy
Katz v. US FBI agents bugged a public telephone booth and recoded Katzs end of telephone conversations in that booth. 2 prong test: o 1. Expectation of privacy o 2. Whether expectation is reasonable Black Letter Rule: Government investigative activity that intrudes upon a justifiable expectation of privacy constitutes a search within the meaning of the 4th Amendment. Landmark case establishes the reasonable expectation of privacy test for 4th Amendment searches and seizures. Plain view: The rule that if government agents, while acting lawfully, plainly seeing something which the agents have probable cause to believe is incriminating, the agents may search, seize and use it as evidence of a crime without a search warrant. Reasonable Expectation of Privacy Test: In order for the conduct of a government agent to constitute a search or seizure under the 4th Amendment, there must be a manifest subjective expectation of privacy in the area of the search or object seized, and this expectation must be one that society is willing to recognize as legitimate a speaker has no 4th amendment claim if she makes no attempt to keep the conversation private -Rule of wiretapping: Berger v. NY for a valid warrant authorizing a wiretap to be issued the following requirement must be met: 1. probable cause to believe that a specific crime has been or is being committed 2. suspected person whose conversation are to be overheard must be named 3. the warrant must describe with particularity the conversation that can be hear d 4. wiretap must be short period of time

-US v White

In a plurality opinion issued by the Supreme Court it was held that the 4th Amendment did not provide protection against government agents transmission to third parties of a conversation between the defendant and the agent. (A narcotics defendant sought to challenge his conviction on the ground that the government violated the 4th Amendment when its informant transmitted conversations with the defendant to narcotics agent by way of a concealed radio transmitter.) The Court reasoned that if citizens run the risk that their trusted acquaintances will betray them or are agents of the government, they also run the risk that those same acquaintances will record and transmit the substance of their conversations. Citizen runs the risl of person to whom she is talking to is unreliable Justice Harlan dissented on the ground that third-party bugging simply imposes too high of a burden on the security and privacy of citizens in a free society. Although the opinion garnered only a plurality, lower courts have read White as establishing that the 4th Amendment offers no protection in cases where the informant transmits information to third parties.

-Smith v Maryland (phone calls) Pen register records (phone calls) only the numbers dialed from a certain phone. The fourth amendment does not require prior judicial approval for installation and use of pen registers There is low expectation since phone companies already have your records and cn be viewed at time of maybe billing -California v. Ciraolo (curtailage of home) Curtailage doctrine He was growing marijuana in back yard had a high fence to observe the yard from the ground due to a high fence which encircled it, the police secured a private plane and flew over Ciraolo's house at an altitude of 1,000 feet. The flyover confirmed the presence of marijuana. The police then obtained a search warrant, seized 73 plants on the next day, and arrested Ciraolo Divided Court found that the observation did not violate the Constitution. Chief Justice Burger reasoned that the Fourth Amendment protections regarding the home had never been absolute: for example, police officers are not obligated to shield their eyes when passing homes on public streets or sidewalks. Since the observations of the Santa Clara officers was "nonintrusive" and "took place within public navigable airspace," their actions were consistent with the Fourth Amendment. " Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed," concluded Burger. The dissenters, led by Justice Powell, argued that this decision was a significant departure from the Court's holding in Katz v. United States (1967) which established a two-part test to evaluate privacy claims -Bond v US One has a reasonable expectation in luggage against physical invasive inspection Squeezing luggage constitutes a search under the fourth After completing an immigration status check of passenger on a bus, officer began walking toward front of the bus squeezing soft sided luggage in the overhead compartment. Upon feeling like a brick in defendants bag officer searched the bag and found brick of methamphetamine Court held that while travers may expect their luggage to be lightly touched or over form time to time they do ot expect them to be subject to exploratory squeeze Therefore officers conduct constitutes a search under fourth amendment

-Kyllo v. US (thermal images) Without a warrant, federal agents used a thermal imaging device to determine whether Kyllos home was emitting enough relative heat to indicate marijuana grow. Black Letter Rule: The government conducts a search when it uses sense-enhancing technology that is not in general public use to obtain information about the interior of a home that it could not otherwise obtain without physical intrusion into the home. Privacy in the home is protected from advancing technology But if obtainable to the public then can conduct the search but if technology not open to general public then is instruction and constitutes a search B. Is the "search" or "seizure" a "state action" (i.e., conducted by a state actor)? If "yes," go to the next issue. If "no," the 4th Amendment does not apply. C. Does the defendant have "standing" to assert the 4th Amendment claim? If "yes," go to Step 2. If "no," suppression is not available to the defendant.

Step 2 - Grounds for the search or seizure? A. Was there probable cause? Probable cause exists where the facts submitted to a magistrate or known to an officer are sufficient to justify a prudent person to conclude that the object of the search is probably at the place or on the person to be searched, OR to believe a crime has been or is being committed. No warrant issued but upon probable cause/ its precondition to warrant 2 types: 1.Probable Cause to arrest exist where the facts and circumstyances within the officers knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belied that an offense has been oris being committed by person arrested o Probable cause to arrest requires likelihood that 1. Particular individual 2. Has committed a particular offense 2. Probable Cause to search exist if the facts and circumstances within the officer knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched o Probable cause to search demands likelihood: 1. That something that is properly subject to seizure by government (contraband) or fruits, instrumentalities, or evidence of a crime 2. Is presently 3. Un the specific place to be searched Must be sufficiently likely to be in the place to be searched at the time of the search - Showing of Probable Cause A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on premises or person to be searched (carrol v, US)

Magistrate evaluates probable cause to issue warrant o Probable cause can be: 1. May be Anticipatorybelieve that evidence will be found on premises to be search on a future days when warrant will be executed (US v. Grubbs) 2. Use of Informers Totality of Circumstances Test (Illinois v. Gates) a) Reliability Credibility and Basis of Knowledge b) Informers Identity c) Behind the Face of Affidavit Can invalidate search warrant on affidavit if: i. A false statement ii. Intentional recklessly included false statements iii. False statement was material to search warrant Exception to Probable Cause: o Terry stop o Consent o Border searches o Abandonment o Plain view tocuh or smell o Administrative search o Search incident to arrest (pc for arrest not search)

Probable Cause Cases: -Spinelli v. US Informant tip must be sufficiently corroborated to be the basis of probable cause Rule: To give rise o probable cause informant tip must be: 2 prong test : o Sufficient statement if underlying circumstances form which the informant gained knowledge o Information supporting the applying officer believed that information is reliable and credible - Aguilar Two prong test o 1. What is the source of the information o 2. What is the reliability of the informants Under this approach both must be satisfied source were he got t from and reliability of the person -Illinois v. Gates: Two prong test is overruled Adopts the less technical test of the totality of circumstances test Totality of Circumstances test: o Veracity and basis of knowledge of the informant and any corroboration of the informants information there is fair probability that evidence will be found in place to be searched. -Whren v. U.S. officer state of mind is irrelevant to the existence of probable cause what is important was reason for stop if an officer has probable cause to believe traffic law has been violated the officer may stop the suspects care even if the officers ulterior motive us to investigate

in this case cop was in high drug area stopped defendants car after observing defendant waiting in intersection he turns abruptly without signaling and is stopped so could stop him for violation of traffic stop and found drugs in open view His subjective reason for making arrest need not be the criminal offense as to which the probable cause was provided Probable cause can be passed on to a separate crime

If "yes," go to Step 3. If "no," consider the following: B. Was there an exception to the probable cause requirement? For example: - Search incident to lawful arrest (p.c. required for arrest, not search) - Consent (must be voluntary and by person with actual or apparent authority) - Plain view, feel, smell (lawfully in position and "immediately apparent") - Abandonment (must be voluntary) - Search at the border or its functional equivalent - Inventory (lawful impoundment if vehicle, search within proper scope) - "Special needs" (school students, probationers, roadblocks, etc.) - Regulatory searches (sometimes require diminished version of p.c.) - Terry stop or frisk, or search/seizure was otherwise "reasonable" If "yes," go to Step 3. If "no," the 4th Amendment was violated. Step 3 - Warrant? A. Was there a warrant? - Was warrant properly issued by neutral, detached magistrate? Warrant Requirements:
o o o o o 1. Has to be supported by oath (sworn statement establishing PC) (affidavit) 2. PC 3. Magistrate issues warrants (JPs MC or could be higher) 4. Particularity ( has to describe place to be searched) 5. Timing (could become stale) and other requirements for execution of warrant

-Johnson v. U.S. Warrant must be given by a neutral magistrate judge Warrantless Arrest: - United States v. Watson Warrantless arrests based on probable cause do not violate 4th Amendment Rule: An officer with PC to make a felony arrest is not required to obtain an arrest warrant There can be exigent circumstances that call for immediate response and excuse mandatory procedures Arrest warrant not requires if person arrested committed a felony or they have probable cause of arrest and if the arrest takes place in a public place then no warrant Police doesnt need warrant if in public place or if its :

o o

Felony police officer may arrest without warrant when he has reasonable grounds to believe that a felony has been comiited and person before him committed it Midemanor may make warrantless arrest if committed in his presence

-Atwater v. City of Lago Vista Fourth Amendment permits warrantless arrests for misdemeanors As long as there is probable cause of the committed crime to arrest maybe done so without warrant Even if minor crime and officer has probable case he may arrest offender The police may make a warrantless misdemeanor arrest even if the crime of which the arrest is made cannot be punished by incarceration Warrant Execution: -U.S. v. Grubbs Warrant may be anticipatory sufficient if there is reason to believe that seizable evidence will be found on the premises to be searched at a future date when the warrant will be executed There need no reason to believe that there is sizeable material on premises at the time the warrant issued Warrant was properly issued when it predicted that seizzeable material would be found in defendants home after police delivered to the porno material that defendant ordered In sume: 1) must be true not only that if triggering occurs there is fair probability that contraband or evidence will be found in a particular place 2) there is probable cause to believe that triggering condition will occur. Warrant must be Precise on its face: Must describe with reasonable precision the place to be searched and the items to be seized -Andersen v. Maryland

General warrants are prohibited by 4ht amendment Requires a particular description of the things to be seized This case it is OK if general searches as long there in attached in connection with the precise thing to be searched Particularity requirement: place to be searched and things to be seized Knock and announce Rule: Generally an officer executing a search warrant must knock and announce her authority and purpose and await admittance for reasonable time or be refused admittance before using force to enter the place to be searched. -Richards v. Wisconsin: No announcement need to be made if officer has reasonable suspicion based on fats that knocking and announcing would be dangerous or futile or that it would inhibit the investigation because it would lead to destruction of evidence. Whether no knock entry is justified must be made case by case basis. A blanket exception for warrant involving drug investigation is impermissible -Wilson v. Arkansas Factors should be considered in reasonable time it takes to open the door may take more in a big house than in an apartment Have also been justified by the accessibility of the evidence an how fast they can dispose of it Timing to rush open the door is considered case by case

Statutory requirement for knock and announce

If "yes," go to Step 4. If "no, consider the following: B. Was there an exception to the warrant requirement? For example:

Exceptionsmust show
1. Rationale to exception 2. Precise showing necessary to invoke the exception 3. Scope of the warrantless author conferred by the exception Warrantless Searches: *Search incident to arrest: (area of immediate control or passenger compartment) Important: 1. Has to be lawful 2. Has to be full custodial arrest Police may conduct a warrantless search incident to an arrest as long as it was made with probable cause May conduct search incident to arrest as long as it was constitutionally valid arrest (lawful arrest) Issuance of a citation will be insufficient because may not arrest but look at atwater Rationale: protect arresting officer and preserve evidence -Chimel v. California Based on Chimels arrest officer searched the entire home without a search warrant Rule: A warrantless search incident to arrest may extend only to person of the arrestee and the area within his immediate control Area of immediate control: they are from within which an arrestee might grab a weapon or evidence The reason for search incident to arrest after all is to avoid destruction of evidence or getting a weapon - U.S. v. Robinson Here license was revoked and was arrested Whole patting down found a pack for cigarette with heroin The nature of arrest does not matter/ police need to protect themselves and therefore search for weapons or evidence that might be destroyed Rule: Any lawful custodial arrest justifies a full search of the arrestees person -New York v. Belton Officer put arrestees in side of the road officer searched vehicle and found drug in jacket Search was valid search incident to arrest because unsecured arrestee could have gained access to vehicle or b/c officer could reasonably believe that the vehicle contained evidence of the drug charge on which arrested the occupants Here court said if have probable cause to arrest the occupant of the car without warrant you can search any area in the passenger compartment at this time they also emand closed container which changed in Gents case

Rule: officer who makes lawful custodial arrest of an occupant of a car may search the passenger compartment of the car incident to arrest

Search incident to arrest/ Entry to Arrest: -Payton v. New York Cop enters home without arrest warrant and finds evidence of crime Absent exigent circumstances police are required to have an arrest warrant before entering suspect home to make an arrest otherwise any evidence is not admissible
arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which suspect lives

Need exigent circumstances to go into home without warrant -Steagald v. U.S. Absent exigent circumstances an arrest warrant does not authorize entry into a3rd Party home, even on reasonable belief that the suspect is present. Police must obtain search warrant for the premises for the suspect but ntot just go in cause have a warrant to arrest -Arizona v. Gant: Distinguished form Belton containers search Police arrest defendant for suspended DL/ was handcuffed and put in squad car/ police searched car Found cocaine/ search invalid search incident to arrest Defendant was handcuffed cant get access to interior to destroy evidence or get weapon Nor any reason to think there are weapons or drugs when arrested for vehicle violation So not a valid arrest and is not search incident because wouldnt be able to access evidence or weapon was not in immediate control of any place that was searched * Exigency: (hot pursuit, emergency, evanescent evidence) -Warden v. Hayden - Hot Pursuit- if you are pursuing someone you enter without a warrant Police officer in hot pursuit of a fleeing felon can make a warrantless search and seizure Scope of search may be broad as may reasonably be necessary to prevent suspect from resisting escaping Can transfer from public place into home Here searching for weapons and incidentally found the cloth of scene of crime admissible -Vale v. Louisiana An arrest on the sidewalk does not justify exigent circumstances to go in and search house Arrestee held in custody no reason to go into house -Evanescent evidence: Police may make seizure without warrant when evidence likely to disappear before a warrant can be obtained such as blood staple or fingernail scrapping or drugs -Emergencies

Emergency that threaten health of safety if not immediately acted upon will justify a warrantless search Is determined objectively through officers point of view

*Vehicle exception: (p.c. for vehicle, includes closed containers if within scope) Automobiles has a diminished expectation of privacy go through inspection stickers can look inside so on.. The mobility also justifies a lesser degree of protection of privacy If cops have PC to believe vehicle contains contraband or fruits, instrumentalities, or evidence of crime they may search car without warrant Rational: Automobiles and similar vehicles are mobile so not likely to be available for search by time officer returns with a warrant Scope of Search: If they have find PC to search a vehicle they can search the entire car including trunk and all containers vehicle might contain the object for which they are searching (US.v. Ross) If they believe contraband is hidden in a particular place with probable cause are just limited to that area If have probable cause to search container place in vehicle they may search container but not extend to vehicle -Chambers v. Maroney search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search if the policed are justified in making a warrantless seach of a vehicle under this exception at the time of stopping, they may tow the vehicle to the station and search it later example a vehicle search based on probable cause conducted three days later after the vehicle was impounded was permissible -Texas v. White cop stopped and arrested man for fraudulent checks officer had probable cause to search an automobile at the scene were it was stopped could constitutionally do so later at the station without first obtaining a warrant t the probable cause fact still was goof at the station house -California v. Carney motor home police had probable cause to believe Carney was dealing drugs and searched without warrant discovered drugs Rule: Any vehicle that is readily mobile and subject to the pervasive law regulating motor vehicles may be search without first obtaining a search warrant so long as there probable cause Should also notice the way the mobile home is used if is there and is planted then has higher reasonable expectation of privacy The automobile exception extends to any vehicle that has attributes of mobility and a lesser expectation of privacy similar to a car/ but extends if they are fixed in a site differnet -U.S. v. Chadwick Have expectation of privacy of luggage

Warrantless search of container cannot be justified as incident to arrest or no exigency exists here had a foot locker that was locked had a high expectation of privacy and police would need a warrant was not justified by a vehicle exception There is expectation of privacy in containers -California v. Acevedo the "automobile exception" to the Fourth Amendment's general search-warrant requirement is broad enough to cover a situation where the police only have probable cause to believe there is evidence in a specific movable container within the car. Rule: Police may search a closed continainer in a car without warrant if they have probable cause to the search container Supreme court eliminate the car container distinction and adopts one rule for car searches: o no warrant required The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." If the police only have probable cause to search a container recently placed in a vehicle they may search that container but search may not extend to other parts of the car The police is still limited to that area if it like pills can go through all the car but if its like a bycle when limited to area where you can hide a bike use the elephant in a matchbox Example: police have PC to believe briefcase that is carrying contains illegal drugs. Unless they arrest D, they may not make a warrantless search of the brief case. Because no exception to the warrant requirement applies. They follow D and he places the brief case in a car. They may then approach D and search the briefcase, even though they could not search it before it was placed in the car. They may not search the rest of the car, however, because D had not has opportunity to move the drugs elsewhere in the car. Presumably if some time passes and D has opportunity t move the drugs the police will have PC to search entire car. *Vehicle Inventory: (lawful impoundment and within proper scope)
3 elements: o 1. Trying to protect property of the owner o 2. Protecting of police from false claims form theft or lose o 3. Trying to protect safety of officers and public

They need to have a lawful for impound doing investigation purposes in the inventory then it is not acceptable according to Chadwick - South Dakota v. Opperman There we objects in plain view the person was not there to arrange the inventory gathering it was constitutional and reasonable for cop to attain the inventory through police procedure Assuming that it even is a search, a routine inventory search of a car, by a police officer, DOES
NOT violates the 4th Amendment when the car is being impounded.

- Illinois v. Lafayette Inventory search at stationhouse of the person of an arrestee and of property in his possession is permissible because to protect the arrestee form theft, stationhouse employees for false claims of theft, and the arrestee and other form injury Police may search areestee personal eloning in order to inventory them before incarcerating the arrestee -Colorado v. Bertine Arrested for DUI/ officer inventory of van and contents Rule: An inventory o f a car and containers therein pursuant to establish administrative policy does not violate the fourth amendment Cannot be made in suspicion of evidence of criminal activity Police may search entire vehicle including closed containers *Consent (voluntary and by person with actual or apparent authority)

Police may conduct a valid warrantless search id they have a VOLUNATARY AND INTELEGENT consent to do so Has to be voluntary (without coercion or force) Has to be clear and unequivocal When looking at consent check the scope was the consent general or specific Knowledge that you have right to withhold consent is not a prerequisite

Actual consent o Is authority consent you have over something if its a third party then the control or access to the property given to you Apparent authority o Any person with an apparent equal right to use or occupy property may consent o Its valid even though no authority if police reaosbly believes tha the person had authority to consent o Limitation Limitation: o Police m ay not act on consent form an occupant if a co occupant is present and objects to the search and the search is directed against the co-occupant Parents and Children o A parent generally has authority to consent to search of a childs room Scope of Search: o Limited by the scope of consent/ it extends to all areas to which a reasonable person under the circumstances would believe it extends o Example police stops for traffic violation told him that they suspected him carrying drugs and asked for permission to search the car D consents. The officer found bag of cocaine. At trial D argued that his consent did not extend to close containers, The supreme court held that because D knew the police were searching for drugs and di not place any restriction on his consent it was reasonable for the police to believe that the consent exceeded to all areas where drug might be found - Schneckloth v. Bustamonte: Cops stopped def. for speeding asked him if he had any drugs and def. answered no and consented to search car which cop found drugs Defendant argued invalid because he had not been told he was free t go Supreme court found no warning is necessary

Voluntariness determined from all of the circumstances and knowledge of the right to refuse consent just a factor to be considered in determining voluntariness -United States v. Matlock permission to search was obtained through third party who possesses common authority So here consent had been given through third party (putative wife) if state shows a common authority over place being searched Common authority rest on mutual use of the property by persons generally having joint access and control for most purposes Burden to prove rests on state -Georgia v. Randolph

Hold that a warrantless search of shared dwelling for evidence over the express refusal of consent by physically present resident cannot be justified as reasonable on the basis of consent given to the police by another resident

Police may not act on consent if a occupant who is present refuses to the search -Illinois v. Rodriguez Search is valid even though person might have not authority to consent as long as police reasonably believed that person had authority Girlfriend had rodgriuguez key and took cops to his apartment Rule: A warrantless entry based on consent on 3rd party is reasonable and thus valid under fourth so long as it was objectively reasonable for cops to believe third party had authority to consent In this case girlfriend had no authority but search permissible *Plain view, feel, smell (lawfully in position and immediately apparent) Police may make reasonable warrantless seizure when they: 1. Are legitimately on the premises 2. Discover evidence, fruits or instrumentalities of crime, or contraband 3. See such evidence in plain view 4. Have probable cause to believe there is immediate apparnt that item is evidence of crim Inadvertence is not required anymore: may still stumble in weapons outside of warrant description -Horton v. California 1. Palin view alone is never enough to justify warrantless seizure of evidence o Incriminating character Must be immediate apparent o Officer must be lawfully located at place from which object can be plainly seen but her or she must have lawful access to the object itself 2. That the discovery of evidence in plain view must be inadvertent o Inadvertence is not a determinative factor If cops obtains a warrant only to search for process of arm robbery they still may sieze the weapons if they are found in plain view during search - Arizona v. Hicks Police may seize unspecified property while executing search warrant through PC Must be lawfully in place and has be immediately apparent evidence eof crime Cannot snoop without probable cause suspicion alone not enough to be searching Since the officer who seized the stereo equipment had only a "reasonable suspicion" and not a "probable cause" to believe that the equipment was stolen, the officer's actions were not reconcilable with the Constitution

*Terry stop or frisk (reasonable suspicion of crime, r.s. to believe armed)

1)Standards: a) Police may stop a person without Probable Cause for arrest if they have an articulable and reasonable suspicion of criminal activity b) If officer also reaosnablyblieves they may be armed and dangerous she may conduct a protective frisk) also known as protective search 2) Scope of Intrusion a) Pat down of Outer cloth Frisk limited to a pat down of outer clothing for concealed instrument of assault (terry) b) Automobiles If officer reasonably believe the driver or passenger may be armed and dangerous she may conduct a frisk of the suspected person Officer may search vehicle even if officer has not arrest the occupant and has ordered the occupant out of the vehicle, provided search is limited to thise areas in which a weapon may be placed or hidden and office posses reasonable belief the occupant is dangerous (Long) c) ID may be required d) Time Limit No rigid time length Court considered the purpose of the stop, the reasonableness of the time in effectuating the purpose, and the reasonableness of the means of investigation to determine whether stop was too long (Sharpe) 3) Admissibility of Evidence Police conduct pat down within bounds of terry the officer may reach into the suspects clothing and seize any it officer reasonable believes based on plain feel is a weapon May not manipulate the plain feel if it is not apparent is weapon and keeps on with pat down (Dickerson) Its a balance balancing gov interest and a individual interest (right to be left alone) They are about to commit a crime couldnt arrest him because he didnt have enough information / dont allow arrest its until you are seen committing crime This is about Brief encounters based on idea that you are about to commit a crime Stop and frisk cases do not go together -Difference of Investigative Stop and a full blown arrest: Investigative stops: Like in terry a) Purpose is investigation b) Duration is temporary c) Level of suspicion is reasonable suspicion d) Warrant not required e) Incidentals Nine (frisk if RS; may be handcuffed Arrests o Purpose is incapacitation hold for charges o Duration is indefinite o Level of susispcion probable cause o Warrant is required but exceptions o Incidental: transporting, handcuffing, booking full search

-Investigative detention Is a seizure and is a search But still reasonable despite fact b/c it is limited in purpose and therefore limited in scope Reasonable suspicion more than mere suspicion and less then PC
- Terry v. OHIO: Police officer noticed men out of a store acting suspicious Stopped men and frisked them for weapons Reasonable suspicion that a suspect is armed allows an officer to conduct limited frisk for search of weapons Rule: where an officer observed conduct that in light of experience and all other circumstances, would lead to an objectively reasonable belief that suspect is armed and dangerous the office may conduct a frisk limited in scope to searching for weapons Reasonable suspicion o Specific and articulable facts that give rise to a particularized and objective basis for suspecting an individual of criminal activity Terry stop o Is a brief stop and frisk of a person whose behavior a police officer reasonably considers suspicious and dangerous - Stop Police may conduct a nonconsensual stop of a person if in the totality of the circumstances a reasonable police officer would have reasonable suspicion that person is involved in criminal activity/ no hunches acceptable Stop must be temp no longer than is necessary to investigate the circumstances associated with the reasonable suspicion of the criminal activity Stop may extend to property eg. Luggage, handbag Police may as question to dispel or confirms suspicion -Frisk If reasonable belief that person may be armed and dangerous May to quick search of vehicle if believe there are weapons around immediate control of a weapon Scope of frisking car is to where weapon could be placed -Dunaway v. NY Detention for custodial interrogation requires probable cause not a valid terry stop under fourth amendment intruded so severely on interests protected by Fourth amendment as necessarily to trigger traditional safeguards against illegal arrest (they did not tell him he could leave and was held by physical restraint). Police violated 4th and 14th amendments; no probable cause existed, they seized petitioner and transported him for interrogation. Statements were exploited by the illegality of the arrest. Seizure of Persons under Investigatory stops: -United States v. Mendenhall There was consent and person was free to go seizure was temporary A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

-Florida v. Bostick People are free to go if not detained and are simply approached by cop Police can get on bus and ask questions if you dont consent they cannot search but if they approach you and ask for consent to search your stuff it is permissible as long as there is not detention and u are free to walk Officers boarded bus shortly before it departure and asked individuals for identification and consent to search luggage. The mere fact that people felt they were not free to leave because they feared bus would depart does not make this a seizure of the person the testis whether under the totality of the circumstances a reasonable person would feel that he was not free to decline the officers request or otherwise terminate the encounter - California v. Hodari Is someone runs from the police court says it is reasonable suspicion and may apply physical force on the dangerous fleeing suspect - Illinois v. Wardlow Defendant saw cops and ran away/ he was stopped and frisked gun was found An individual present in an area of criminal activity standing alone is not enough to support reasonable suspicion but in this case there was flight which raised reasonable suspicion Reasonable suspicion justifying a stop is present whether: I. A suspect who is standing on a corner in a high crime are II. Flees after noticing the presence of police Together both factors were sufficient to establish suspicion -Alabama v. White Tips still held at same standard of probable cause If tip is corroborated that may raise reasonable suspicion corroboration of tip create reasonable suspicion and justifies reliability and investigatory stop police in this case received an anonymous tip asserting a women was carrying cocaine and predicting that she would leave a specified apartment at a specific time ge tin car and drive to a specified motel After observing the informant had accurately predicted the suspect movement it was reasonable for the police to think that the informant had inside knowledge that the suspect indeed had cocaine thus justifying a terry stop. -Florida v. JL Compare case to Alabama v. white where here tip did not provide predictive information and left police with no way to test the informants knowledge and credibility gun excluded because totality of circumstances did not warrant reasonable suspicion by anonymous tip anonymous trip doe not represent veracity by itself it is suitable if it is accompanied by corroboration and may raise reasonable suspicion to ma the investigatory stop Permissible Scope of Stops, Frisks, and Sweeps: -Hayes v. Florida When there is detention and transportation to station goes overboard have to have individual suspicion The court leaves open possibility that maybe fingerprinting him out in the field taking a few moments maybe could have been reasonable Possible because terry moves to balancing standard Hayes only had suspicion that court could support limited interference with liberty but no taking to station Removal of person definitely need probable cause nothing less

-US v. Sharpe Timing: has to be reasonable length of the investigation Consider: purpose of stop, reasonableness of time in effectuating purpose, reasonableness of the means of investigation to determine whether a stop was too long How long can investigative detention no deadline can last mere moments to hours Takes as long as it is reaoisnably necessary Focus on what police were doing has to do with diligent pursuit to dispel or confirm the suspicion Make sure you pursue diligently Detention of Property scope: -United States v. Place Cops may detain a persons luggage on reasonable suspicion but since such dentition may effectively retain the person from continuing with his travel the detention of luggage is subject to the same limitations as terry Detention must be brief as reasonably as possible In Place 90 minutes was out of scope the pursuit was not done diligently and could have already had dog in place but did not use it / has less intrusive means to effect search Police may briefly seize items upon reasonable suspicion that are ir contain contraband or evidence but such seizure must be limited 90 minute detention was unconstitutional - Michigan v. Long Protective search under terry Saw knife in plain view gave reasonable suspicion for weapons Officer may search passenger compartment of car during a terry stop if he has reasonable suspicion that the suspect is dangerous and vehicle might contain a weapon Areas are limited to suspects access of weapon ready access Officer may feel or look where there is ready access of weapon Scope of Stop and Frisk: -Minnesota v. Dickerson If an initial pat down is for a weapon he may not investigate further simply because item feels like some other form of contraband Manipulating object is not allowed have to be apparent that is weapon Protective Sweep: - Maryland v. Buie Scope of Protective Sweep 1. Allow to look only where can find person 2. If its justified was he in lawfully position to make the view 3. Plain view: o Has to be immediately apparent o Had probable cause when realized was a crime Protective sweep only reasonable suspicion that there is residents in building who may present danger If you reason other people in resident can do protective sweep and look in places were people may be hidden

*"Special needs" (school students, probationers, roadblocks, etc.) School Searches: Public school searches o Warrant or PC not requires for searches conducted by public school officials; only reasonable grounds for the search are necessary. This exception is justified due to the nature of the school environment (TLO) Have to determine under the fourth of search is reasonable? Reasonable Standardo 1. Offers a moderate chance of finding evidence o 2. Its reasonably related to the objective of the search o 3. Not excessively intrusive in light of seax and age Important sentence: there are special needs (special governmental societal needs) that will sometimes justify activity that does constitute a kind of seizure or search but it is reasonable even though may not be full blown suspicion and not a warrant o The important part is special needs other than the usual needs of law enforcement o How do we know intrusion is reasonable? Use standard and balance gov and private needs interests of the parties -New Jersey v. TLO School officials may search students under their authority without a warrant if they have reasonable grounds for suspecting the search will turn up evidence of a violation of the law or school rules. Scope of such a search and not excessively intrusive in light of the age and sex of the student and nature of the infraction. She wouldnt have expectation of privacy because of locos in parentis No state action argument gets rejected If there is a state action So know is there probable cause or a search warrant or an exception Does not have propabbel cause but its there exception What about implied consent: it cant has to be voluntarly What about investigatory stop: o Couple of cases were being decied on regulatory searches camaro case o Municipalities going into homes seeing if they were complying with regulations o Court says regulatory stop is valid need probable cause but in this case define it in a way doesnt require high suspicion Court says that have to have reasonable suspicion the school has interest in educating and mainintg safet and discipline inorder to educate So here lower than probable cuase Here if balance gov interest and individual interest government has greater weight Check Points:road blocks Road block is a seizure but special needs balanced interest of public safety Special Needs Reasonableness rule o 1. Interest to be served o 2. Level of intrusion (time of day, signs or surprise) o 3. Effectiveness (if not effective not allowed) - Michigan Dpt of State Police v. Sitz Police may stop automobiles at a sobriety checkpoint absent reasonable suspicion where the intrusion is slight.

Officers discretion is limited in that they must stop every vehicle; and the checkpoint is a reasonable alternative to address the serious drunk-driving problem. Cannot randomly pulling cars over, but can set up road block You can have it for a DWI because you are regulating driving, but you cant have drug dogs because that does not serve the regulatory purpose of driving -City of Indianapolis v. Edmond A vehicle checkpoint program whose primary purpose is to detect evidence of criminal wrongdoing is not sufficiently separate to pass constitutional muster. Do not have a right to conduct general criminal exploratory purposes -Illinois v. Lidster Hit and run had occurred so set roadblock a week later lidster arrested for DUI Here was reasonable needed help finding hit and run and was a high interest and minimally intrusion to drivers Court look at all the circumstances in each case it has subjective element to it. This case disntiguished information seeking for grave of public interest v. crime control in edmo Drug Testing: Although gov required drug testing constitutes a search SC has upheld testing without warrants, probable cuase, or even individualized suspicion when justified by special needs beyond the general interest of law enforcement. Examples: - Skinner v. Railway Executivie Assoc. Gov can require railroad employees who are involved in accidents to be tested for drugs after the accidents Apparently huge problems with drivers getting intoxicating so had a interest of public safety Legally obtained urine sample without warrant or probable cause - National Treasury Employees Union v. Von Rabb Gov can require persons seeking officers in customs position connected to drug interdiction to be tested for drugs. There is a special need for testing due to access of the drugs during job. - Board of Education v. Earl Go can require public school students who participate in any extracurricular activities to submit random drug tests because special interest school have in the safety of their students. -Chandler v. Miller Georgia statute all candidates must pass urinary drug test. Gov. may not require candidates for state officials to certify that thye have taken drug test within 30 days prior to qualifying for nomination or election- there id no special needs for scuh drug testing. No interest in public safety or anything to that effect. *Searches of Border of Functional Equivalent: Neither citizens nor non citizens have any fourth amendment rights at the border or its functional equivalent (international airports) as part of the concept of national sovereignty. When u are crossing into the United States it is lower expectations of privacy and has a strong interest in protecting is borders. No need for standards can pretty much do anything. - United States v. Montano Border officials may stop cars at fixed checkpoints even without reasonable suspicion that car contains illegal aliens.

Officials may disassemble stopped cars at checkpoints without reasonable suspicion. However SC has suggested that nonroutine personal searches at border (e.g. strip searches or body cavity) may require probable cause Mantano had drugs in gas tank court said OK to search without suspicion Interference with a vehicle owner's gas tank "is justified by the Government's paramount interest in protecting the border." The Court rejected the argument that the requirement of suspicion for highly intrusive searches of people be carried over to cars (especially at the border) *Searches of the Body: intrusion into the human body implicate a person mist deep rooted expectation of privacy thus the 4th requirement applies. The reasonableness of the search into the body depends on weighing societies need for the evidence against magnitude of the intrusion on individual (includes the threat of health, safety and dignity). Blood test Drawing blood , surgery, excretion, urine, etc.. 4th protects persons but standard is not rigid either way Constitutional limits: o Due process Rochin v. clalifornia: stomach pump case to get evidence Wether conduct shock the conscience Breithaupt v. abram Involuntary blood draw not offensiveeven by most delicate Blood drawn are routine in life But indiscriminate taking under different conditions (not sanitized) or by those not competent might be equivalent of conscience being shocked violated due process o Fourth amendment Must be reasonable Probable cause or exception and warrant or have exception and sample has to be reasonable Execution might be unreasonable Exception for intrusion of body? o Possibility obtain blood without warrant obtainable through exigency (schmerber) -Schmemerber v. California Where probable cause justifies a blood test for alcohol content, exigency makes the test permissible incident to arrest because there is a danger of destruction of the evidence if the officer must wait for a warrant. Case deals with blood test suspected of drunk driving by common medical procedure involving no ris of trauma or pain and thus was a reasonable intrusion Had exigency here o 1. It applies only when there is no time to seek warrant o 2. Must be clear indication that evidence will be found o 3. Relevance of evidence and likely success to extract o 4. Reasonable means of testing

Surgery: - Winton v. lee A surgical procedure under a general anethsthetic (remove bullet need as evidence) involved significant risk to health and a severe intrusion on privacy and this is unreasonable at least where there is other evidence available. If shock the conscious will offends due process

If "yes," go to Step 4. If "no," the 4th Amendment was violated. -----------------------------------------------------------------------------------------------------------------

Confession and Due Process

Intro: - Applicable rights and rules Due process 14th voluntariness (not voluntary not admissible) 5th self incrimination 6th right to counsel 6th amendment and 5th both have counsel rights o 6th guarantees assistance of counsel o 5th counsel right to be present o Both might apply simultaneously Have to be aware that all these right might be applicable in certain circumstances o It can be Miranda problem and maybe also a due process or also 5 consider all three dont just pick one/ can get in trouble if just jump to the obvious constitutional right *Fourteenth Amendment Voluntariness For confession to be admissible, the due process clause of the 14th requires that they be voluntary. Coerced statements are inadmissible for all purposes, including impeachment o why dont we like coercion: 1. Reliance Dont know if it is any truth b/c u beat him out if him or wanted to tell you what you hear Two leading cause if wrongful conviction 1. Identification of witnesses 2. Confessions 2. Physical tortures is not required: psychological pressure may counts as coercion 3. Voluntariness is viewed from the totality of circumstances -Ashcroft v. Tennessee Here suspect held of 36 hours interrogating him in small room, bright lights, in and out officers. Continuous interrogation is inherently coercive. The confessions obtained in this case were made involuntarily under the totality of the circumstances test used in evaluating due process violation claims. He was held for a day and a half straight without sleep or rest, or the ability to talk with anyone. His conviction, having been based on this coerced confession. - Spano v. New York Physiological interrogation may also be coercive Assessed the totality of circumstances including the suspects age education and mental and physical condition along with the setting duration and manner of police interrogation Defendant was put through long hours of interrogation and his friend was used by the officers to get the confession out of him. So the court ruled that the defendant "was overborne by official pressure, fatigue and sympathy falsely aroused" which makes his confession not voluntary You will also see this case when right to counsel. -Colorado v. Connelly

Only an official compulsion will be render a confession involuntary for purpose of the fourteenth amendment. A confession is not involuntary just because it is the product of disease that prevents the confession from being of the defendant free will. Confession admitted as long as it feels like ordinary indicia of free will is present. Court focused on action of police and says they didnt do anything wrong so no coercion

*Privilege against Self Incrimination 5th amendment no person shall be compelled in any criminal case to be a witness against himself, is part we focus on. Has been interpreted to mean that a person shall not be compelled to give self incrimination testimony. Have to remember: 5th Amendment o Custody - not same as 4th, you may not be free to leave. o Interrogation - standard is not only express question but also words tor action or part of the police that should know are reasonably likely to elicit an incriminating response. o Invocation may remain silent or right of counsel under Miranda. If invoked right to counsel all interrogation must cease in right of counsel. It is a prophylactic (prevention) right designed to prevent from badgering without aid of counsel. o Waiver can waive rights under Miranda as long it is knowingly, voluntary, an intelligent The Warnings: Fifth Amendment not to be compelled to incriminate himself: -Miranda v. Arizona A rapist who confessed during custodial interrogation appeals his conviction, contending he was not informed of his constitutional privilege against self-incrimination and right to counsel. In custodial interrogation, police must warn suspects of right to remain silent and right to counsel The warnings and a valid waiver are prerequisites to the admissibility of any statement during custodial interrogation. A person in custody prior to interrogation must be informed of their right, which are; o 1. Has right to remain silent o 2. Anything he says can be used against him in court o 3. Has right to presence of an attorney (correlates with the sixth amendment) o 4. If cannot afford an attny one will be appointed if he so desires. Warning need not be verbatim, Re-warning not needed after a break Why bother tell person warning? o When you waive your rights it is important because evidence will be introduced into trial. The due process is not satisfying because it turns into squaring mach and they judge witnesses and usually believe officer .Voluntariness is available but when it has merit it becomes hard and as a result court usually believe uniformed officers. Voluntary not enough. They wanted something else o Miranda should be described as prophylactic rule-- we try to protect people from the effects of questioning in a police dominating environment then by all objective standards it is a failure. If you fell the pressure of the environment than you dont feel secure that you actually have rights and you can exercise them. So courts try to protect these rights.

Majority still incriminate themselves and usually waive their Miranda rights Post Miranda there is a concern that perhaps suspects dont really believe they have their rights and can use them -When are the warning required to be given? Anyone in police CUSTODY and accused of a crime, no matter how minor the crime, must be given Miranda warning prior to interrogation by the police. -What is custody? Person is in custody when they are not free to leave. -What is interrogation? Does it have to be expressed questioning? (How do we judge statement?) Miranda applied only to custodial interrogation. Interrogation refers not only to express question but also to any words or actions on the part of the police that should know are reasonable likely to elicit incriminating response. Exception of Warning due to Public Safety: -Quarles v. New York After police arrested an armed suspect who hid his gun, they asked him where the gun was before reciting Miranda. At trial, the suspect moved to exclude the gun and his answer. Miranda allows public safety exception. Black Letter Rule: Police may ask questions reasonably necessary to ensure public safety without reciting Miranda warnings, and suspects replies are admissible. Miranda Applicable to States by the 14th: - Dickerson v. Unites States Cannot eliminate the Miranda requirement by statute This case invalidated statue that purportedly eliminated Miranda requirement that person in custody and being interrogated be informed of the right to remain silent and right to counsel It was settled that Miranda had become customary to people and known by many. Custody Requirement: Whether person is in custody depends on whether the person freedom of action is denied in any significant way. The more it resembles an arrest the more it will be considered to be custody If the detention is voluntary, it does not constitute custody. If it is long and is involuntary it will constitute custody o 1. Test is objective Whether a person is in custody depends on the objective circumstances of interrogation o 2. Traffic Stop Not Custodial Usually because you are in your car and not stopped for significant time -Berkember v. McCarty Petitioner's officer stopped respondent's vehicle and asked if respondent had been using intoxicants. Respondent replied yes. Respondent was arrested, asked again about the use of intoxicants, and again answered in the affirmative. Respondent was never advised of respondent's constitutional rights. Whether an officer who stops a motorist must give Miranda warnings before questioning the motorist to confirm or dispel the officer's suspicions.> Miranda does apply even to misdemeanors, but only after a custodial interrogation. The D was not in custody until the officer arrested him. Traffic stops are presumptively temporary and brief.

Therefore, because the initial stop of respondent's car, by itself, did not render respondent in custody, respondent was not entitled to a recitation of constitutional rights. However, after respondent was arrested, any statements made were inadmissible against respondent without a reading of respondent's constitutional rights. Because it could not be determined which statements were relied upon in convicting respondent, vacation of respondent's conviction was affirmed.

Interrogation Requirement: Must read rights before interrogating suspect. An interrogation not only refers to express questioning but to any words or actions on the part of the poice that should know is reasonably likely to elicit incriminating response. -Rhode Island v. Innis Officers made remark about shotgun being unsafe in area of mentally challenges school The suspect thought about that remark and should them where shotgun was hidden. Here custody is clear he in the car and surrounded by officers The officers didnt ask a him directly bit officers were talking of shotgun Conversation was not express questioning of respondent Here he was warned several times but not right before he talked but court says wasnt even needed to give Miranda rights Here interrogation means that officers should have known question were reasonably likely to elicit an incriminating response Officer could not know that he was susceptible to remarks so ct said not an interrogation didnt violate Miranda rights -Illinois v. Perkins While in jail Perkins admitted to crime to an officer posing as inmate Miranda warnings are not required when the suspect is unaware he is talking to a police agent. (Police enlist convict and undercover officer posing as convict to elicit confession.) The 5th protects from the effects of dominated police environment and in this case this was not the case so interrogation did not require the Miranda warnings. Waivers and Termination of Interrogation After Miranda warning are given a detainee has several options: to do nothing, waive his rights, assert the right to remain silent, or assent to consult with lawyer A. do nothing court will not presume a waiver but will not presume it invoked right to remain silent or consult atty so the questions proceeds. B. Waive rightso Waiver valid if it is done knowingly voluntary and intelligent .court will look on totality of circumstances in order to see if standard was met. C. right to Remain Silent o Detainee must indicate explicitly unambiguous and unequivocal D. Right to Counsel o At any time the detainee may invoke right to counsel o If detainee invoked this right all questions must cease until detainees is provided with attorney if initiated further questions himself

Wavier of Rights: 1. silence does not equal a waiver however 2. waiver may be inferred doesnt have to be express it can be inferred from conduct 3. Waiver can cover multiple topics 3. Has to be made voluntarily knowing and intelligently -North Carolina v. Butler Here defendant said he would talk but not sign form He didnt waive on paper doesnt really matter He does talk and looks at that and court says action counts more than the form Objective facts was that he was willing and voluntary answering the questions Does he have to be warned about every topic? No waiver is general Mere silence does not indicate waiver. However, silence and conduct indicating the suspect understands his rights but chose to waive them is sufficient, though police bear the proof of burden. - Colorado v. Springs Suspected had different crimes sole contention is that he was being questioned about one thing when they shifted topics to something else that was not covered by the warning he received initially warnings are not specific is just a general reminder that you have right to remain silent court hold doesnt matter that there is different subject once he was warned he had the necessary information to make a decision whether to invoke his right or not here he didnt invoke his right so constituted a waiver Invocation of Rights: there is difference between right to remain silent and right to counsel Right to remain silent At any time prior or during interrogation, the detainee may indicate that he wished to remain silent. Such indication must be explicit, unambiguous, and unequivocal. If right to remain silent is invoked all questioning related to the particular crime must stop Police may resume questioning if the scrupulously (carefully) honor request -Michigan v. Mosley (Right to remain silent) The police may reinitiate question after the detainee has invoked the right to remain silent, as long as they scrupulously (carefully) honor the detainee request. This means that at the very least the police may not badger the detainee into talking and must wait a significant time before reinitiating the question (compare to right to counsel were you may not do this) SC allowed to reinitiate questioning where: o 1. Police immediately ceased questioning upon detainees request and did not resume till several hours o 2. Detainee was re-warned of his rights o 3. Questioning was limited to a crime that was not subject of the earlier questioning So can reinitiate after several time has passed he is given his warning again and is not the same questioning that he had invoked his rights on before. Right to Counsel At any time prior to or during interrogation the detainee may also invoke a Miranda 5th Amendment right to counsel If invoked all questioning must cease until the detainee is provided with attorney or he initiates further questioning himself

Police may not reinitiate questioning about any crime unlike right to remain silent o Here if invoked right the police may not even question the detainee about an unrelated crime as they can in right to remain silent The right to counsel is prophylactic rights designed by courts to prevent police form talking to suspect without counsel and this purpose is done until he gets counsel and all questioning must cease -Edwards v. Arizona (right to counsel) Must immediately stop interrogation when suspect invokes right to counsel May not interrogate him again until he is provided with counsel and is present at questioning The detainee may however initiate the questioning but if not police may not initiate it at all

Court is saying when you want council what you mean is dont want to speak to you police directly only want to talk through a lawyer and so if the police established contact when right has been invoked then violation of the right to counsel to be present But look at schazter What if an Invocation is not clear?
-Davis v. U.S. Invocation must be clear and unequivocal no obligation by cop to stop and clear up ambiguity u just run a risk as a cop of being incorrect and having statement inadmissible Request for counsel-- can be invoked only by an unambiguous request for counsel in dealing with custodial interrogation Court held that Maybe is definitely not an invocation Request must be sufficiently clear that a reasonable police officer would understand the statement to be request for counsel If there is invocation: - Minnick v. Mississippi Counsel must be present at interrogation Mere consultation with counsel prior to question does not satisfy the right to counsel the police cannot resume questioning the detainee in the absence of counsel The detainee has answered a few question but requested attorney He was allowed to meet with his attorney three times. Subsequently in the absence of counsel police resumed interrogating the detainee and he made incriminating statement The court held that statement were excluded because counsel was not present at interog The exception: probation against questioning a detainee after he request attorney last the entire time the detainee is in custody for interrogation purposes plus 14 more days after the detainee returns to his normal life. After that point the detainee can be questioned regarding the same matter upon receiving a fresh set of Miranda Warnings (Maryland v. Schatzer). *Note remember that the 5th right to counsel under Miranda is applied as soon as in custody as opposed to the 6th that is only applied after indictment or a bit before. Also sixth amendment right is offense specific.

**Sixth Amendment Right to Assistance of Counsel*** 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense Provides that in all criminal prosecutions, the defendant has a right to assistance of counsel Right protects a defendant form having to face complicated legal system without competent help. Is applied in critical stages of criminal prosecution after there is formal proceedings have begun At indictment when your are charged then it is the initiation of an adversarial criminal proceeding Right is violated when the police deliberately elicit and incriminating statement from a defendant without first obtaining a waiver of defendant or right to have counsel present. o Do not confuse with 5th amendment standard of saying something that would reasonably elicit an incriminating response right has been limited to cases where adversary judicial proceeding have begun 6th Right does not apply in pre-charge custodial interrogation you can use the 5th Miranda right to have counsel present Right to Counsel for Confession -Messiah v. US Unknown to D, Colson had agreed to cooperate with federal agents in the ongoing investigation. A radio transmitter was placed under the seat in Colson's car by agents At indictment a person is charged if crime and there has been initiation of an adversarial criminal proceeding where counsel needs to be present Law enforcement officials may not attempt to interrogate and deliberately elicit a confession from a defendant after indictment without the presence of counsel 6th Amendment right to counsel is severely violated when law enforcement officials deliberately attempt to interrogate and elicit a confession from a defendant after indictment without the presence of counsel. In Spano v. New York, the Court reversed a state criminal conviction because a confession by the defendant had been elicited after indictment and wrongly admitted into evidence. The Court found this a violation of the 14th Amendment. The concurring justices in Spano pointed out that a defendant is most in need of a lawyer's help after indictment. Furthermore, to accord a defendant any less right to counsel at this stage of proceedings than what he is entitled to at trial itself would deny a defendant "effective representation by counsel." Since the current case is a federal prosecution, the 6th Amendment guarantee to counsel is at stake. Spano is expanded.: Any admission or incriminating statement made by a defendant after indictment and outside the presence of counsel is not admissible at the trial itself. -Brewer v. Williams Puts meat on the bone answer what constitutes interrogation and tells us about when we have initiation of adversarial criminal proceeding because in this case not indicted yet.

Detective gave burial speech to defendant on the way to the police station and defendant then told him were weapon was hidden Court held: The evidence should be suppressed because the defendant was denied counsel during an interrogation environment. Once judicial proceedings begin, such as the arraignment, assistance of counsel is required. In this case, the defendant not only did not waive his right to counsel, he affirmatively maintained it through several exchanges between the officers.
The right to counsel is violated if incriminating statements are obtained from the accused after judicial proceedings have been initiated and counsel retained.

Standard of interrogation under 6th amendment: Under Messiah if you deliberately elicited for incriminating information that its interrogation and if no lawyer is present than there is a violating the 6th Offense Specific -Illinois v. Perkins Sixth amendment right to counsel is offense specific. Thus if a defendant makes request for counsel for one charge, he must make another request if he is subsequently charged with a separate unrelated crime if he desires counsel for the second charge. Similarly, even though a defendant sixth amendment right to counsel has attached regarding one charge he may be questioned without counsel concerning an unrelated charge. Here the defendant was charged with batter and in jail because police suspected defendant for unrelated murder they placed him with an undercover police officer The officer elicited damaging confessions from defendant regarding murder The interrogation did not violate the sixth amendment because defendant had not been charged with the murder. Neither did interrogation violate defendant sixth amenemdant or right to counsel under Miranda -Texas v. Cobb the Court held that because the Sixth Amendment right to counsel is "offense specific," it does not necessarily extend to offenses that are "factually related" to those that have actually been charged. Since the right to counsel was offense specific, and the offenses were separate, Chief Justice Rehnquist wrote that the "Sixth Amendment right to counsel did not bar police from interrogating [Cobb] regarding the murders, and [Cobb's] confession was therefore admissible." Basically can ask other questions which 6th amendment invoked counsel didnt invoke them cn ask about other crimes Right to Counsel and Interrogation - United States v. Henry 6th amendment right to counsel is violated when an undisclosed, paid government informant is placed in the defendants cell after defendant has been indicted and deliberately elicits statements from the defendant regarding the crime for which the defendant was indicted. In this case there was deliberate solicitation of an incriminating response - Kulhman v. Wilson The sixth amendment is not violated when you merely place an informant in a defendants cell the informant must take some action beyond mere listening in designed deliberately to elicit incriminating remarks Identification and Right to Counsel -United States v. Wade A suspect has right to the presence of an attorney at any post charge lineup or showup Definition - At lineup witness is asked to pick perpetrator of the crime for a group of people and in a show up is just on a one on one basis.

Role of counsel in lineup is to have an attorney present so lawyer may observe any suggestive aspect of the lineup and bring them out on cross examination of the witness. Worry is that in a lineup there may be prejudicial and cause irreversible error Pretrial lineup without counsel present violates defendants right to counsel. Black Letter Rule: Conducting a lineup without the defendants counsel present violates the defendants right to counsel. Remember that if in lineup is called to say specific words that is still identification and is not testimony so its allowed because its just like identification purposes like showing your face -Kirby v. Illinois Defendants arrested for robbery, but not formally charged, were identified at the police station by the victim without their counsel present. Right to counsel during criminal identification does not attach until after defendant is formally charged. Black Letter Rule: A criminal defendants right to counsel does not attach for purposes of witness identification until the government initiates criminal proceedings against the defendant. In pre charge or investigative lineup the 6th amendment is not violated Right to Counsel, Due Process, and Identification - United States v. Ash Whether six amendment grants an accused the right to have counsel present at post indictment photographic identification procedure? A photographic lineup is not a critical stage of a criminal proceeding requiring the presence of defense counsel. Here the danger irreparable misidentifications not present. A criminal defendant objected to the governments use of a photographic lineup without the presence of defense counsel. Black Letter Rule: A criminal defendant has no right to have counsel attend a photographic lineup conducted by the government. Photographic Lineup: A pretrial identification procedure in which a witness is shown an array of photographs which may or may not include a picture of the accused, and is then asked to identify if possible, the perpetrator of the crime; the physical presence of the defendant is not required as it is with a traditional lineup. Here A lawyer ca always look at photos and object and in a lineup it is different it cannot be reproduced The accused maybe does not have claim under the sixth but may have due process claim regarding the photo identification Also not entitled to counsel because the accused himself is not entitled to be present, rendering it impossible that the accused will be confused or overpowered by the proceedings. Due Process: A defendant can attack identification as denying due process when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. It I clear that both parts of this standard must be met for the defendant to win and that to meet this test the identification must be shown to have been extremely suggestive. -Stovall v. Denno A show up at a hospital did not deny the defendant due process where the procedure was necessary because perpetrators of a serious felony were at large, and the police had to determine they were on the right track and the court found little danger of misidentification The witness was in critical condition and needed identification immediately the court viewed the totality of the circumstances and allowed the identification

-Manson v. Brathwaite This case the perpetrator had not been charged so 6th didnt apply, but due process did The court held that there was no substantial likelihood of misidentification was a showing of a single photograph to a police officer two days after the crime. Black Letter Rule: Even if a witnesss identification is based on suggestion and is unnecessary, it does not violate the defendants due process rights if it is reliable based on the totality of the circumstances o Elements of totality of circumstances: In this case had 1. Opportunity to view 2. Degree of attention 3. The accuracy of the description 4. Witness level of certainty 5. Time between the crime and the confrontation Here reliability was not undermine the totality of circumstances passed muster and photo not suggestive enough to cause irreparable misidentification No violation of due process Example of A fundamental unfair procedure such as when perpetrator of the crime is known to be black and the suspect is the only black person in the lineup then that would violate due process. Remember here we are talking of investigatory lineup vs 6th amendment post charge lineup. Back to the 6th Right to Counsel At trial back to the 6th Amendment: Judges have always given right to counsel at trial if you can afford it, does this include right to counsel if you cannot afford it or indigence? - Betts v. Brady Court in this time had said federal and capital cases If indigent had right to counsel In betts the defendant defended himself still guilty They said that in capital cases it was absolutely necessary because it was matter of life and death court said 6th only applied to the federal system and not to states So here was not entitled to 6th amendment because didnt extend to states and not due process because was able to defend himself Holding in this time no right to counsel exception if its a capital or federal case -Gideon v. Wainwright Reverse Betts Here breaking and entering case could afford lawyer the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries. Defendant entitled to counsel that the sixth amendment extends to states through the 14th amendment

However still didnt answer the whole question because in this case only applied the 6th to a felony case - Argersinger Does right to counsel extend to misdemeanors? Right to counsel only if there is authorization for imprisonment more than 90 days Court said he was entitled to a lawyer because there was jail time and petty offenses are sometimes more complicated than other cases - Scott v. Illinois Right to counsel extends to indigent people and also in misdemeanor cases when there is actual imprisonment In Texas -- appoints counsel to indigent if jail time is authorized Scott was not sentenced to imprisonment, even though the applicable statute allowed for it, the state was not obligated to provide counsel. Rehnquist called that line of reasoning "the central premise of Argersinger

**The Exclusionary Rule and the Great Debate:************** In General: Exclusionary rule is a judge made doctrine that prohibits the introduction, at a criminal trial of evidence obtained in violation of defendants Fourth, Fifth or Sixth Amendment rights. Rationale Purpose of the exclusionary rule is to deter the government (primary police) from violating a persons constitutional rights: If the government cannot use evidence obtained in violation of a persons rights, it will be less likely to act in contravention of those rights. The rule also serves as one remedy for deprivation of constitutional rights (other remedies include civil suits, injunctions, etc.) - Weeks v. US Police entered home and seized papers used to convict weeks. Police entered without search warrant The Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule." Problem was that even after weeks the exclusionary rule only applied to the federal courts -Mapp v. Ohio Exclusionary rule applied to the states through the 14th Exclusionary rule requiring that the result of a violation of his prohibition not be used as evidence against defendant Mapps home was forcibly searched without a search warrant. Mapp seeks to have the evidence seized therein suppressed under the 4th Amendment exclusionary rule The exclusionary rule is applied to prosecutions in state courts Black Letter Rule: The exclusionary rule requiring evidence gathered in violation of the 4th Amendment to be excluded from criminal proceedings applies equally to both the state and federal governments Exclusionary Rule: The general rule in criminal procedure that evidence obtained in violation of the 4th Amendment may not be used against the individual whose rights were violated in obtaining the evidence. Achieve judicial integrity- use of evidence would taint the process Necessary to achieve deterrence of police misconduct Arguments against Exclusionary Rule: Was controversial rule and has died away become the standard Argument is that it keeps from finding the truth If police break down and find cocaine if that is excluded well fact still was in procession of 2 kilos, he is still factually guilty but is going to act like not guilty because didnt follow constitutional procedure that is not fair. There are other things that might be done by providing proper training problem is not enough uniformity You may laso sui the department through civil suit through 42 USC 1983 or also commit tort not immune from suit Can also be prosecuted though state penal code but probably wont be

There is no direct way to sanction police officers that is enough like the exclusionary rule but are your really directly punishing the officer for violating your rights throughtthe exclusion rule in the court by discarding evidence. Not really! Purpose for exclusionary rule: 1. Deterrence 2. Judicial integrity o Idea is that to take evidence an use is in court knowing its obtain In violation of the laws of the united states its in effect condoning illegal methods o Illustrative analogydaughter takes candy bar and instead of dad taking back, tells her stealing is bad and unwraps the candy and starts eating it o The courts cant unwrap candy bars and eat them because they are the omnipotent teacher they need to preserve integrity of the judicial system. o However no one makes argument of judicial integrity anymore Really hard to go against exclusionary rule but f there is a shot and you go for it and win could be a big deal and other people will try other methods. It has just been accepted as the way we just do things here in American courts Standing to Object to the Admission of Evidence: The concept of standing to object to the admission of evidence seized during an illegal search refers to a partys legal right to object. Traditionally, to have standing to contest a search, a party must have had a reasonable expectation of privacy in the place searched. Development for standing -Jones Case Under Jones you can have automatic standing if you were charged with possession than you automatically had standing in complaining on contraband was seized. This established standing Other favorable standing came form property interest o If you had property interest from thing that was seized than you had standing of 4th Then there was rule legitimately on the premises than can complain of searches in those premises Rakas did away with this an established a privacy interest in the property rule - Alderman v. United States In 1969, however, the Supreme Court in Alderman reaffirmed the established principle [that] suppression of the product of the 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Cannot establish standing vicariously The decision was based, in part, on the idea that the public has an interest in seeing criminals prosecuted (and convicted or acquitted) on the basis of all the evidence which exposes the truth. An improper search of a home can, under the rule in Alderman, be objected to by those who reside therein, but not by a nonresident defendant against whom evidence was discovered during the search. -Rakas v. Illinois (passengers) This court does away with Jones standard and say reasonable expectation of privacy The defendants were just passengers and they did not own the car. The defendants were convicted and their motion to suppress the evidence was denied because the trial court found that they had no standing over the car or the gun, which they did not own

Court held that the "legitimately on the property" requirement of Jones was too broad. Legal Reasoning: The court ruled that unlike Jones, where the defendant had stayed overnight in the apartment of a friend, the defendants in the current case were just sitting in a car and they had no expectation of privacy under the passenger seat of the car, where the gun was found. The court further ruled that the 4th Amendment is designed only to protect personal rights and the defendants can claim no such rights because the car did not belong to them. The conviction was affirmed. -Rawlings v. Kentucky Was in apt with female companion while they were there police conducted a search problem is he was holding and told the acquaintance to hide it in purse Police searches a person just because where on premises were warrant is being executed Rawlings is charged wants to complain courts held he had no standing Rawling said they are my drugs so he has right to complain court still says he didnt has a reasonable expectation of privacy - Minnesota v. Carter (standing for homes) Court held that only overnight guest have a reasonable expectation of privacy and have standing for illegal searches Police saw people in home doing stuff with cocaine Court held, in an opinion authored by Chief Justice William H. Rehnquist, that people who visit someone's home for a short time do not have the same protection against unreasonable police searches and seizures as do the residents or their overnight guests. Short-term visits for commercial transactions are not protected by the Fourth Amendment. Furthermore, Chief Justice Rehnquist noted that nothing in the case served to show that Carter was accepted into the household.

*Exceptions to the Exclusionary rule: Breaking the Casual Chain - Rationale to exclusion Unde the fruit of the poisonous tree doctrine, the exclusionary rule can be very broadly applied. Recently, the ocurt has begun to narrow th scope of the rule by balancing its purpose (deterrence of government misconduct) against its cost (exclusion of probative evidence). The court generally will not apply the rule when it will not likely deter government misconduct Thus, of there is a weak link between government misconduct and the evidence (ie it is not likely that misconduct cause evidence to be obtained), the court will probably no exclude the evidence. 1. Independent Source: Evidence is admissible if the prosecution can show that it was obtain from a source indepednant of the original illegality What we focus on is did you get it lawfully o We can ignore the unlawful for purpose of exclusionary rule Doesnt mean no other remedy you can still sue for those violation of constitutional right s Evidence wont be suppress because you did something illegal Rule: Illegality lead to the evidence = suppression Causation: o A is illegal act --------------lead to evidence o We know is evidence suppressed

What if now A is illegal act--------B is lawful------------both lead to same evidence Answer here is illegality represented by A evidence suppressed if it was only way but the independent source rule says if you come at it lawfully then thats OK evidence is now admissible This doesnt mean we ignore A it means exclusion is just not the remedy for the illegality -Silverthorne v. US Here tainted evidence follows casual link The court established the fruit of the poisonous tree rule in which good evidence, if obtained illegally, cannot be used against the defendant. This is an extension of the exclusionary rule. Majority: The majority came up with the fruit of the poisonous tree doctrine, which prohibits the government from using evidence derived from conduct that violates the Fourth Amendment or other provisions of the constitution. Thus, the exclusionary rule remedy applies not only to the direct fruits (evidence) obtained by unconstitutional means, but also to all other evidence subsequently derived from it. The court found this rule was needed because without it the Fourth Amendment in anticipation of developing subsequent evidence that could be admitted at trial. If this was permitted it would defeat the purpose of the individuals rights as well as the exclusionary rule. Idea of piousness tree is that everything that comes out of its is forbidden - Murray v. United States An illegal entry onto premises will not bar the use of evidence later found on the premises if police return with a warrant based wholly on information not obtained or different information not during the illegal entry and at the time discover the evidence. Police illegally search a warehouse and discovered pot, but do not seize it the police later return to the warehouse with a valid warrant based on information totally unrelated to the illegal search. If police seize the marijuana pursuant to the warrant, the marijuana is admissible. The court says that the second time of entry was pursuant to the warrant and was not result of the earlier entry and there is no reason why we shouldnt apply independent source. What developed probable cause and warrant was the warrant independent from the illegal entry of the warehouse. Evidence then is not tainted y illegality and no connection between illegality and tainted evidence 2. Inevitable Discovery: - Nix v. Williams If the prosecution can show that police would have discovered the evidence whether or not they had acted unconstitutionally the evidence will be admissible A dispute arose over the admissibility of evidence related to a murder victims body located as a result of illegal police conduct when the prosecution was able to show that the body would have been discovered without the illegal police search. Court held that it would have been discovered and there was a party in the near area it would have discovery within a short amount of time and evidence would have been preserved without the illegality of Williams showing were body was Black Letter Rule: If the prosecution can establish by a preponderance of the evidence that illegally obtained information ultimately or inevitably would have been discovered by lawful means, the evidence should not be excluded. Inevitable Discovery Doctrine: Exception to the exclusionary rule under which evidence discovered as a result of a constitutional violation can nevertheless be admitted at trial; in order for the evidence to qualify for admission, the prosecution must show by a preponderance of the

o o o

evidence that the evidence obtained illegally would have inevitably been found had the illegality not occurred. Problem is how to determine it would be inevitably found in a short amount of time if you deal with the body the corpse rottens pretty quickly.

3. Attenuation Doctrine: - Wong Sun v. United States Intervening Act of Free will: o An intervening act of free will by the defendant will break the casual chain between evidence and the original illegality and thus remove the taint o The defendant was released on his own recognizance after an illegal arrest but later returned to the station to confess. This voluntary act of free will removed the taint of confession o Could be considered independent source testimony Facts: o 1. Didnt have probable case and forced way in to living quarters they found nothing o 2. But toy did give statement hat Johnny had heroin o 3. Police goes to Johnnys home and found tubes and ounce of heroin and statement which said Wong Sun had heroin o 4. Then went to pick up Wong Son o 5. At police station Wong sun gives a statement several days later after being interrogated o Always figure out what evidence are going to be suppressed o What do we do Statement from toy? It was excluded because they didnt have probable cause or warrant to go in the home There was illegality unlawful entry and illegal entry led to the statement Therefore statement has to be suppressed o Next pieces of evidence heroin and statement of Johnny? More difficult because when they go to see Johnny its not that they are violating his rights in not that they break in his apartment instead Johnny statement are tainted by prior illegality they are fruits of the poisonsess tree o Are they inadmissible? Yes. They we attenuated to dissipate the taint In other words far removed that no longer carries the taint of the illegality and therefore admissible o Here not attenuated enough to dissipate the evidence What about Wong Sun? o Was it inadmissible: dont really have to answer that question Holding: o Court held that the statement was made on free will and the statement was voluntary becoming so attenuating as to dissipate the taint o Court held the statement fell in the independent source doctrine (Knock and Announce Rule Violation evidence not suppressed) -Hudson v. Michigan Exclusion is not an available remedy for violations of the knock and announce rule pertaining to the execution of a warrant

Where officers violate the knock and announce rule the exclusionary rule does not apply to exclude evidence resulting from the search Rationale: the exclusionary remedy is too attenuated form the purpose of the knock and announce rule of protecting human life and limb property privacy and dignity. The cost of excluding relevant evidence because of claims that the knock and announce rule was violated is too high when compared to the deterrence benefit that will be gained There are other deterrents to prevent officer for violating the rule such as civil suits and internal police disciplinary sanctions Court explains that the 4th amendment essentially has a causation component the illegality has to produce the evidence so if there is illegality and illegality doesnt lead to the evidence then no harm no foul/ here where going to find the evidence any ways

Dissipating (reducing) the taint -Brown v. Illinois The Supreme Court held that Miranda warnings generally will not purge the taint of an illegal arrest. The Court did not hold, however, that the warnings will never purge the taint, but instead stated that exclusion issues must be answered on the facts of each case, the Miranda warnings being one of many facts. Alleged illegal arrest and it eventually results in a confession Issue: o Does the fact that there is prior illegal arrest if confession inadmissible? Court says it depends sometimes yes or no Factors needs to be considered to decide whether confession is admissible with the taint : Factors: o 1. Whether Miranda rights given Helps to dissipate b/c at least warn and if speaks can be used against him and right to counsel Makes It less bad o 2. Temporal proximity Means how much time pass we have illegal arrest did u give confession 20 minutes later or if you gave it a week later well maybe e not so much and illegal arrest not prompting suspect to confess o 3. Intervening Circumstances Example illegally arrested but had opportunity for lawyer and following consultation after deciding to talk and not participating form illegal arrest and there was intervening act tht confession doesnt now directly come from illegal arrest o 4. Purpose and flagrancy of police misconduct These are the factors doesnt mean requirements mean something we think about but not determinative by itself So example illegal arrest followed by Miranda warning in order after illegal arrest made suspect met with lawyer and purpose of arrest form police wasnt to obtain confession this would probably not be sufficiently tainted confession Have to look through the factors and see if they are available

(Violation of Miranda rights and reducing the taint) Good faith and Bad faith: Oregon v. Elstad Generally evidence obtained in violation of Miranda is in admissible at trial But the exception comes from the attenuating doctrine that dissipates the taint of the Miranda violation Rule: A subsequent valid confession may be admissible if the original unwarned question seemed unplanned and the failure to give Miranda warning seemed inadvertent Have chat in living room and the suspect makes incriminating statement Officers where in living room where teen made incriminating statement when he was not warned of his Miranda rights They take him down to station interrogate him again and give him warnings He repeats admission yes I broke it The trial court had argued that the cat was out of the bag he had already given admission and probably would not have denied if he already said it Here there was no purpose of confession and exploit of his admission they simply went to arrest him not to interrogate him so look at purpose in standards above (brown) Court says the subsequent confession no sufficiently linked to the prior violation Miranda has constitutional basis but still a prophylactic rule and there is nothing in violation that you have to suppress information And Miranda and 5th are not the same arguably but what court says Yes there was a violation but we think given warnings voluntary of the confession it is admissible not overlooking first violation and remedy is dont allow into evidence first confession not let nothing be admissible Missouri v. Seibert Again, Miranda right not given but case is distinguishable The police department was practicing not giving Miranda warning until had admission of guilt then would be given warning the department misunderstood the Elstad case If the police obtain a confession from detainee without giving him Miranda warnings and then give the detainee Miranda warnings an obtain a subsequent confession the subsequent confession will be inadmissible if it was question first warn later nature of the questions was intentional (police practice to get around Miranda) So here bad faith police practice evidence is inadmissible once they have admitted without know rights and then given their rights its hard to take back that admission and deny it What about Non-testimonial/ Physical evidence? -U.S. v Patane Failed to give Miranda warnings is evidence excluded even if statement given voluntarily? If police failed to give Miranda warnings and during interrogation a detainee gives the police information that leads to the physical evidence, the evidence will be suppress if the failure was in bad faith and or purposeful , but if not purposeful, the evidence probably will not be suppressed The physical evidence really stays the same as physical character Violation of Miranda not violation of the 5th amendment its just a prophylactic rule created by the court The Miranda warnings were merely intended to prevent violations of the Constitution, and that because Patane's un-Mirandized testimony was not admitted at trial the Constitution (specifically the Fifth Amendment's protection against self-incrimination) had not been violated. Physical evidence obtained from un-Mirandized statements, as long as those statement were

not forced by police, were constitutionally admissible. Two other justices also held that the physical evidence was constitutionally admissible, but did so with the understanding that the Miranda warnings must be accommodated to other objectives of the criminal justice system. They did not discuss whether the Miranda warnings were, in themselves, constitutionally required 4. The Good Faith Exception: -US v. Leon The exclusionary rule does not apply when the police arrest or search someone erroneously but in good faith, thinking that they are acting pursuant to a valid arrest warrant, search warrant or law. Rationale: One of the main purposes of the exclusionary rule is to deter for improper police misconduct, and this purpose cannot be served where police officer are acting in good faith because there is not effect of deterrence they are not conscious of the wrong doing so how can it deter Here when an officer acting with objective good faith has obtained a search warrant from a judge and acted within the scope there is no police illegal it and nothing to deter Here there was no probable cause because informants tip was unreliable It makes no sense to punish the police officers for magistrates error Officer acted in objectively reasonable good faith he did everything that was asked for and got warrant : he acted with o 1. Objectively reasonable good faith o 2. Warrant Only point of exclusionary rule is to deter future misconduct -Massachusetts v. Sheppard The Court maintained that trial courts can use evidence seized by officers who have an "objectively reasonable basis" for mistakenly believing they have obtained valid warrants. Upon a factual inquiry, the Court found that "the officers in this case took every step that could reasonably be expected of them" to secure a valid warrant. Lawmakers did not enact rules for excluding evidence to invalidate evidence because of clerical errors by judges but to deter police from conducting unlawful searches Sheppard deals with error in the warrant Affidavit didnt support probable cause because it was error and dealt with controlled substance instead of what they went in for The supreme court says officer and magistrate acted in reasonable objectively good faith and it was a mechanical error they knew warrant was defective but tried to execute it in anyway Whats objectively reasonable? A reasonable well trained officer or magistrate would not have known that what they were doing was wrong Here acted in good faith and didnt actually engaged in flagrant misconduct -Herring v. US If you mess up but only negligent then wont necessarily exclude evidence as long not deliberately made than its admissible In this case officer stopped a suspect running a warrant check which was later a computer error in record keeping The officer relying on the warrant arrested him and discovered evidence

So here dont have misconduct the problem is we have a misconduct on the administrative side and was in the adjoining county no with officer that made the mistake Supreme court decides that officer did act in good faith relied on was he was told Court had previously encountered a case of not a valid warrant like this and what they concluded was as long as police are not reckless or engaged in systemic misconduct (as long as system is not poorly operated likely to produce erroneous results) the court said wont exclude evidence b/c wrongdoing no sufficiently culpable to require any kind of remedy by the exclusion of evidence This case illustrates that court is not interested to see exclusionary rule to vindicate a wrong doing they see it as vehicle to deter future police misconduct and if police sis unaware of wrongdoing then how can you deter them -Exceptions to the exception of Good faith exception reliance on search warrant: Supreme Court has suggested four exceptions to the good faith defense of reliance on a defective search warrant. A police cannot rely on defective search warrant in good faith if: 1. The affidavit underlying the warrant is so lacking in probable case that no reasonable officer would have relied on it 2. The warrant is defective on its face (ie fails to state with particularity the place to be searched or the things to be seized) 3. Police officer or government official obtaining the warrant lied to or misled the magistrate 4. The magistrate has wholly abandoned his judicial rule 5. The Impeachment Exception: Some illegally obtained evidence that is inadmissible in the states case in chief may be used to impeach a defendant credibility if he takes the stand at trial -Voluntary Confession in Violation of Miranda: -Harris v. New York An otherwise voluntary confession taken in violation of the Miranda requirements is admissible at trial for impeachment purposes A confession obtain din violation of the defendants Miranda rights, but otherwise voluntary ,ay be used to impeach defendant testimony that is contradictory if he takes the stand at trial even though such unlawful confession obtained is inadmissible Rational is that you are not allow to commit perjury and showing evidence contrary to inconsistencies will effect that objective to prove the lie -Confession in Violation of the 4th Amendment - US v. Havens Miranda is still at heart a prophylactic rule designed to give effect to give guarantee fourth amendment but not itself a constitutional mandate Prosecution may use evidence obtained from illegal search that is inadmissible in its direct case to impeach the defendant statements made in response to proper cross examination reasonably suggested by the defendants direct examination Impeachment is a device which serves to divine truth. Thus, the balance between the constitutional rights of the defendant and the interests of justice must be struck in favor of impeachment by illegally obtained evidence when the cross-examination is properly related to the direct examination *but not if the evidence is smuggled in by eliciting false statements on cross-examination that were not sufficiently related to the direct testimony

By taking the stand you are exposing yourself that if prosecutor asks question prompts inconsistently with what you had testified then the illegal evidence will be admitted This is a case where there was suppression of some evidence but not essential to the whole case -James v Illinois What about impeachment of a witness other than the defendant? Witness takes stand and testifies inconsistent could you use illegal testimony to impeach the witness testimony Here supreme court draws the line and say no cant impeach by using illegal statement Defendant have not control over witness so to use this evidence in order to impeach would place defendant in jeopardy that where beyond persons ability to foresee and therefore ignore violation of the defendant with giving offsetting benefit to defendant Basically illegal obtained evidence cannot be used to impeach the trial testimony of witness other than the defendant