14th amendment; ostensible dual citizenship
Made state citizens also federal citizens; use to apply the BoR to the states
Palko v. Connecticut––Double jeopardy applicable to states
It wasn't. (OVERRULED)
Adamson v. Cal––Right against self incrimination applicability to states
It wasn't. (OVERRULED)
"Shocks the conscience" standard
Exclusionary rule predecessor; kept ev out that was obtained by police through conduct which "shocked the conscience"
Right to Privacy
Griswold v. Connecticut created it. No mention of privacy in the Const. or BoR
Which provisions of BoR have been incorporated to states?
All, except right to grand jury indicment; right to bail
- Right to Grand Jury Indictment
- Right to Bail
- - Level of proof, but not to a level that rises to the leve of conviction (above reasonable doubt)
- - The facts and circumstances w/in the deciosn makers knowledge and of which they had ereasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in th belief that an offense had been or was beeing committed
Prospective use of probable cause (as opposed to retrospective use)
Proce PC before judge, before the act
Retrospectice use of PC (as opposd to prospective use)
Exigent circumstance prevented police from approving axn. w/ judge beforehand, so they do so afterwards
Informant PC developmen
- Criminal CI: good track record; reliable facts
- Undercover Cop CI: generally more trustworthy
- Non-Criminal, non-police CI: look at motives and trustworthiness
PC-based, no warrant arrest legitimacy
Are legitmate. Warrants aren't required for arrests, only reasonableness
When an officer has PC, and arrest is Const.
- Misdemeanor committed in his presence; Or
- PC for a felony
FBI warrantles arrest requirements
Warrant required unless exigent circumstances
Status of getting pulled over w/ regard to arrest
Getting pulled over is an arret; it is not a custodial arest
State law modifying the 4th amendment
It doesn't. A state can set the bar higher w/ regard to search and seizure, but no Const. violation occurs when officer acts below the state bar but above the federal bar
Arrests for non-violent misdemeanors: Okay?
yep. State may bar it, but 4th amendment doesn't (take up in state court if you want recompense0
Being approached by a police officer w/o your request
Pretextual traffic stops
Cops can stop, even if just for a minor traffice offense, so long as they have PC
PC std. of review
Difference between subpeona and search warrant
Subpoena: "Thanks, we'll get back to you." (You can challenge, etc.; no immediate axn required.)
Warrant: "Give them what they want, get out of the way." - Judge. (If you don't get out of the way, you and your client go to jail. No discretion in answering a warrant.
Either application of physical force (e.g., Hodari D) OR when force is absent, assertaion of and submission to authority.
E.g., cop grabs you or turns on lights to stop you
4th amendment protects people on places
- KatzTeh invasion of a reasonable expectation of privacy
Reasonable expectation of privacy test
- 1) Subjective prong: Expectation of priv. that society is willing to protect.
- 2) Objective prong: Did the individual at issue expect area to be private
Highest level of proteciton of privacy afforded to ______
Exception to home having highest level of privacy:
Leav eev. out int he open (e.g., weed/grow light in your picture window that can be seen from the street)
Arrests w/in home
- Though no warrant is required for a public arrest, warrant is required to enter someone's home to arrest them (excluding exigent circumstances)
- 1) PC;
- 2) Must describe person, place, time, and expectations
Implied authority given by arrest warrants (beyond arresting someone
To search "wingspan" surroundings
Warrants lose their efficacy; e.g., I think guy has drugs so i get a warant, i can't wait two months––I have reason to believe you have contraband not, not in the future or past
EXAM TIP: Police entry into home
Highest level of 4th amendment protection invoked
CI reliability test
Totality of circumstances test
Totality of circumstances test
- Modified the Aguilar/Spinelli test:
- 1) reveal basis of knowledge of informant (how they got the knowledge) and
- 2) provide facts establishing either the veracity of the affiants informant or the reliability of the informant's report in the case
- ToC Test: made this a disjunctive test. "PC is a fluid concept that can't be readilty reduce to a neat set of legal rules."
- NB: Still show reliability, track records, basis of knowledge
Knock and announce
- Generally: Knock and announce required for entry by police
- Exceptions: Reasonableness and exigent circumstances (e.g., flight/danger/spoliation risk demonstrated by sufficient ev.)
Search incident to a lawful arrest
- Cops can look anywhere suspect/item would be hiding/hidding
- E.g., looking for suspect in a house in exigent circumstances would allow inspection of places suspect would hide; looking for stolen laptop after cop had legally entered house because of exigency would allow a greater search
Purposes behind allowing search incident to lawful arrest
Protect cops (weapson); avoice spoliation (destructivle ev.); look for means of escape
Limits of a search incident to lawful arrest
Wingspan. Can search person and area around you wher eweapon or ev could be stashed (only applies in custodial arrest)
- Cop must have reasonable belief based on specific and articulable facts which, taken together w/ rational inferences from those facts that reasonably warrant thofficer in believing them
- E.g., cops found one suspect, but one is still unseen, they can search the house where found suspect was captured in places a person might hide (i.e., they couldn't search through drawers, etc.)
Cops w/ probable cause to believe a car has contraband can search the car
Extent of serach pursuant to auto exception?
- Anywhere and in the same manner as if a search warrant was obtained. The only limitation is reasonableness of the search.
- E.g., looking for a stolen TV would allow looking in a trunk, but not cutting open seats; looking for contraband liquor could required cutting open seats since that's where bootleggers hid it
- Allowed. Blanket inventorying w/ no discrection in the matter is best (helps protect state from theft claims, etc.)
- What about private parties that find contraband? They might be made state actors, so they might have to reach reasonableness requirements
Search incident to citation
- Not allowed.
- If officer stops someone, he can:
- 1) Write a ticket, if no PC to search, send them on their way
- 2) Write a ticket, if there is PC to search, he can search
- 3) Arrest the malfeasor and search
Long enough to pull malfeasor over and write them a ticket. If longer, it's unreasonable unless the officer places him under custodial arrest
Chadwick auto exception
Can't use to search someone's priv. property (no longer good law)
Acevedo auto exception
If PC to search a car, you can look in all areas where contraband may be (e.g., drugs could be in backpak in the trunk; didn't explicityly overrule Chadwick because cops had PC to pull Acevideo over)
Searching personal items seized pursuant to arrest
Allowed. No warrant needed because it's in the suspect's wingspan (e.g., paint chips on clothse found contemporaneously w/ the arrest)
Inventory of perosonal items seized pursuant to arrest
Allowed. A std., discretionless procedure is reasonable. Deters false claims and careless handling of articles taken form arrestee (ct. shouldn't administer routine police procedures)
- (Guy strangles his wife, went to station, they saw him trying to scrape ev from under this fingernails)
- Voluntary assent to going to station and bineg subjected to general/exigent search is okay
State actors examples
- 1) Employees of the state
- 2) Private citizens (e.g., when hotel clerk allows police into a room at police direction to do so)
- 3) Private college that receives fed funding
Consent given from invalid warrant
Not valid consent. 4th amendment violation.
Do cops have to give all options? E.g., "You don't have to assent to our request to search"
- Nope. Look at totality of circumstances; if they were given a choice isa factor, but is not dispositive
- E.g., N. Korean visitor (who is used to brutal police) is asked by a cop to search; N. Korean had no real choice
- (Bus serach, blocked exit case; dragnet, suspicionless search was okay)
- Would a reasonable person feel free to decline cop's request?
Shared spaces and consent
- Anyone you voluntarily share your expectation of priv. w/ can consent; it's the risk you take when sharing priv.
- NB: 6 roommates in a house; all can consent to common room search, but can only consent to search of their own rooms
Apparent authority to consent (but not actual authority because space was not shared)
- Is enough to allow cops in; cop's action would be reasonable if they thought person had the ability to consent
- Problem: Discourage follow-up questions so cops don't have to see if actual authority exists
- Dispositive Q: Did cops behave reasonably?
Effect of denial of entry contemporaneously w/ space sharer's consent
One space sharer can override another. If cops want entry, use assenting space-sharer's testimoney to get a warrant
Plain view exception
- 1) Police have lawful reason for being somewhere;
- 2) Probably cause for search
- (E.g,, overturning turntable to check serial number-–couldn't tell just by looking that it was stolen)
- NB: Inadvertence is not a requirement! It is a factor, though
Privacy expectation in trash
- General rule: None. Unless something was done to show that thye expected it to be kepy private.
- Reasoning: Persons have no expectation in privacy in the numbers they dial, they voluntarily convey them to a phone co., this is similar, trash is voluntarily being conveyed to the trash co.
Open field exception
- No. Priv. expectation.
- NB: Cops could be lisable for trespassing, but the exclusionary rule wouldn't apply because no 4th amendment violation
Cost-benefit analysis of exclusionary rule
Only exclude when the benefits of deterrence are higher than the costs of excluding the v.
The Leon Exception
- Warrants obtained int he absence of PC are valid so long as:
- 1) Plice were actingin good faith;
- 2) Police must have believed magistrate was neutral and detached
- Redux: So long as cops were working under a good faith belief that they were following the reqs of obtaining a warrant, the ev. is not excluded
Clerical errors and false warrants
Not the cops' fault; ev. is not excluded––deterrence does not outweigh the costs (that is, excluding ev. will not avoid clerical errors)
Inevitable discovery rule
- "We would have found it, anyway."
- If cts can conclude that police would have found ev. that they found by violating the Const. w/o the violation, the ev. stays in
3d party standing to challenge 4th amendmment violation
- Doesn't exist.
- Result: Cops can come into non-suspect's house and rrest an actual suspect
- NB: The dispositive Q is whether visitor had an expectation of priv.; overnight guest, yes; short-term visitor who's just there to pack coke, no.
Exception to 3d party exception to exclusionary rule
Overnight guests in others' houses have expectation of priv.
Plain view in vehicles
- 1) Offiercer lawfully present;
- 2) Sees something that is reasonably, on its face, ev. of a crime;
- 3) Cop may do what cops do when stopping car (e.g., ins. check, regis. check)
- 4) Cop may also ask to see car VIN, if in the process he sees something in plain view, it's allowed in
Fruit of Poisonous Tree
- If info that lead to getting v came from an illegal axn, you can't use that ev.
- NB: Even warrants can be fruit of poisonous tree (unless Leon applies)
Fruit of poisonous tree––Intervening event
If there's a break in the chain of causation, ev. is admissible
Illegal arrest effect on ev. admissibility
- If the ev. is obtained separately from the illegal arrest (e.g., it's not obtained while they're illegally cuffing suspect), it's admissible.
- "We have all the ev. we need to prosecute him outside of the illegal arrest, so this act is okay (for 4th amendment purposes)."
Investigatory stops based upon reasonable and articulable suspician are okay
Patting down outer clothing to look for dangerous items is okay; must have reasonable and articulable suspician that a person poses a danger
3d-party info as basis for Terry frisk
- NB: But must be a reason to believe they pose a risk:
- Fla v. J.L.: "Black male wearing plaid shirt has a gun." Was not valid
- Wardlow: Just because people walk away from cops ≠ reasonable, articulable suspicion
Terry stop and traffice stops––Reasonable period
- Cops have long enough to figure out what's up (e.g., time to seek a wararnt, etc.)
- NB: Investigatory stops can be even as long as 30 min, so longa s the reason for the delay is reasonable ("The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.")
- NB: Four hours is okay in some circumstance (e.g., to see if a suspect passes a heroin balloon)
Terry frisk and finding non-weapon cotraband
Cops shouldn't ignore what they find in a legit Terry frist, but they can go too far; e.., feeling an obvious non-weapon lump in a pocket and moving in his fingers, etc.
Terry stop for ID
- MUST be reasonable, articulable suspiciion, can't justu stop someone to get their ID (and then arrest them if they don't)
- Hiibel, drunk man, taunting police, did give reasonable, articulable suspiciion to get his ID/arrest him
Okay. Non-discrectionary, brief, and important gov't interest.
- Not okay. No direct relation between driving and drugs w/in a car
- Takeaway: Can't stop to look for general criminal investigation purposes.
Strop/body cavity searches in prison processing
- Okay. Even for non-violent and misdemeanor crims.
- Public police: Jailers are responsible for the safety of every prisoner in the joint; prevents contraband from entering––even non-violent offenders can get arrested on purpoes to sneak in contraband
Parole officers and seraches
Can perform "administrative searches" w/ no worry of 4th amendment violations; regular cops can't enter w/o warrant, P.O.'s can
Problem of "officers of public safety"
Hybrid cop/firefighters––Firefighters have far more "exigent" situations in which they can act (e.g., I'm here to inspect a cod violation.)
Permission to seize
Takes away a 4th amend violaiton
Forcible removal from home to obtain fingerprints
Search by school admin
Okay. Not a search for criminal activity, search to protect sutdents in school and to enforce school rules (reasonable suspicion probably required)
Search by school police officers
Different from admin. School police officers are still plice officers.
Search of person by school-provided-medical-profession
Perhaps okay, but can go too far ("Come to the office and strip.")
Fed. regulated employer mantdating drug tests
Okay. Narrow (e.g., only after accident or at yearly physical), dealing w/ an activity that had a huge impact on public safety
Admin junk yard searches
Okay. Junk yards had to keep meticulous records or they could become a chop shop
Carnara v. San Fran
Ct. said it was okay to go to a person's house, tell them they wanted to inspect for earthquake readiness, an, if person didn't let them, they could get a warrant (w/o probable cause)
Dunaway and Terry stops
Taking a person into custody (w/o arrest because there is no PC) and in which they'd be physically restrained f they tried to leave is not a brief, investigatory stop. Unreasonable.
Miranda efefcts upon the exclusionary rule
Can attentuate the connection between illegal seizure and inculpatory ev/statements
Not an illegal seizure. Not asking to display something considered private
Police lying to gain permisison to invade privacy
- It's okay. Otherwise, no undercover work coudl be done. (Even if they sign a statement verifying they aren't cops!)
- NB: Can't lie and say they have a warrant; but they can life and say they're going to buy drugs
When you speak to someone, you take the risk that they're a snitch and you do so at your own peril
Cameras recording externals of private home
Okay. External ≠ private
- Depends. did cop trespass to place on vehicle? If so, fruit of poisonous tree.
- NB: Jones began a shift of SC jurisprudence, Katz now means that 4th amendment protects people and places.
Not okay to use.
Technology and cops
There is a line to be drawn in regard to law enforcement use of technology
Gov't actor induces someone into doing something he would not have done otherwise w/o the inducement; that it, the gov't implants the idea into an actor's head
Miranda--Most important factors
- 1. Custody
- 2. Interrogation
Miranda––Components of warning
- 1. Right to remain silent
- 2. Anything said can be used against you in court
- 3. Right to an attorney
- 4. Can invoke right at any time
When in jail and questioned in a room (not a cell) w/ open door, is Miranda needed?
Nope. No custody, even though you're in jail.
Post-Miranda confession admissibility after pre-Miranda eliciting of confession
May not be admissible (depends on whether confession was tainted)
Must Miranda rights be affirmatively invoked?
Miranda––Pseudo-interrogation statements made to another officer, NOT the D
Any response by D will be admissible, this is not considered an interrogation
Non-mirandized statements and impeachment
Can use them. Miranda does not facilitate perjury.
Non-Mirandized, coerced statements and impeachment
Not admissible. Const. violation
Types of Immunity
- Transactional (highest protection)
- Derivative use ( = 5th amendment)
- Use (lower than 5th amendment; can't compel testimony)
When is right to counsel invoked?
After the beginning of a criminal prosecution?
When does a criminal prosecution begin?
Indictment? Probably. Arraignment? Definitely.
Right to counsel in all meetings?
Nope. Only critical meetings.
Does an arrest invoke right to counsel?
Nope. Neither does questioning. Right is only invoked when they decide to bring charges.
Public Safety Exception
Can't have dangerous contraband lying around
Gideon: Right to counsel fundamental?
Right to counsel––Appeal of Right
You have one.
Right to Counsel––Discretionary review
Right to Counsel––Misdemeanors
Yep, so long as jail time is on the line.
Right to Counsel––Compulsion to accept counsel
Can't do it.
What is effective counsel?
- Low bar.
- Two prong test:
- 1. Atty performance was outside the wide range of professional competent assistance; and
- 2. D must show poor performance affected the outcome of the trial (requires clairvoyance)
Effective counsel in plea bargains
- Two prong test:
- 1. D would have accepted the bargain had he known of it; and
- 2. Neither prosecution nor trial court would have revoked the offer
Right against self-incrimination
Coerced statement are never, ever allowed in as ev. or as impeachment
Psychological coercion can make statements inadmissible
Source of coercion effect upon statments
Coercion must come from the cops, not an external source (e.g., voices in your head, conscience)