Criminal procedure

4th amendment

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." protects persons against unreasonable arrests or other seizures as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements.

locations searched- home

1) Home Although the Supreme Court has stated that "the Fourth Amendment protects people, not places," (see id. at 351), the Fourth Amendment, by its terms, protects against an unreasonable governmental search of a "house." This protection extends to persons who have the right to immediate possession of a dwelling, such as the renter of an apartment or a dormitory. Chapman v. United States, 365 U.S. 610 (1961). a) Curtilage In addition to the home itself, an area immediately surrounding the home known as the "curtilage" may be covered by the "umbrella" of the home's Fourth Amendment protection. In determining whether the area is protected, the following four-factor test applies: i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby. b) Open fields Private property that lies outside the curtilage of a home, such as a farmer's field, is not protected by the home's umbrella of Fourth Amendment protection. Under the "open fields" doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and "no trespassing" signs are posted. United States v. Oliver, 466 U.S. 170 (1984). c) Overnight guest in a home While an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter. Minnesota v. Olson, 495 U.S. 91 (1990). (As to the ability of the owner or guest to consent to a search of the home, see §I.C.4.f, Consent searches, infra.)

Exclusionary rule exceptions in detail

1) Inevitable discovery rule The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means. 2) Independent source doctrine The evidence was discovered in part by an independent source unrelated to the tainted evidence. 3) Attenuation principle The chain of causation between the primary taint and the evidence has been so attenuated as to "purge" the taint. Both the passage of time and/or intervening events may attenuate the taint. Example: An officer makes an unconstitutional investigatory stop, learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest. The evidence the officer seizes as part of the search incident to the arrest is admissible. Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016). 4) Good-faith exception The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979). Good faith is limited to the objective good faith of a reasonable police officer. This exception does not apply if: i) No reasonable officer would rely on the affidavit underlying the warrant; ii) The warrant is defective on its face; iii) The warrant was obtained by fraud; iv) The magistrate has "wholly abandoned his judicial role"; or v) The warrant was improperly executed. 5) Isolated police negligence Isolated negligence by law-enforcement personnel will not necessarily trigger the exclusionary rule. To trigger the rule, police conduct must be "sufficiently deliberate such that exclusion can meaningfully deter it." The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or systemic negligence. Herring v. United States, 555 U.S. 135, 144 (2009). Example: Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don's arrest and calls the other county's sheriff to check. The sheriff tells Paul that there is a warrant out for Don's arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009). 6) Knock and announce The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule, if the search was otherwise authorized by a valid warrant. Hudson v. Michigan, 547 U.S. 586 (2006). 7) In-court identification A witness's in-court identification of the defendant is not fruit of an unlawful detention. Thus, the identification cannot be excluded. On the other hand, live testimony may be excluded as fruit of illegal police conduct if there is a sufficient link between the illegal police conduct and the testimony. c. Harmless error Even if the trial court wrongfully admitted illegally seized evidence, the appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result. Note: The denial of the right to counsel is never a harmless error. d. Enforcement When the defendant challenges a confession or the admissibility of evidence, by right, a hearing is held to determine whether the confession or evidence is fruit of the poisonous tree. This hearing is held outside the presence of the jury. The defendant has a right to testify at this hearing, and the state bears the burden of establishing admissibility by a preponderance of the evidence. e. Obtaining evidence by questionable methods Evidence obtained in a manner that shocks the conscience is inadmissible. Examples of such methods of gathering evidence include inducements by official actions that offend the sense of justice and serious intrusions into the body, such as with surgery to remove a bullet. Contrast that, however, with a cheek swab to obtain a DNA sample, which is a reasonable intrusion because it is quick and painless, and involves no surgical intrusion beneath the skin. Maryland v. King, 569 U.S. 435 (2013).

right to attack facially valid warrant

1) Right to attack truthfulness of affidavit Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause. A defendant can challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and ii) The false statements were necessary to the finding of probable cause.

stop and frisk

1) Stop—limited seizure/detention A "stop" (also known as a "Terry stop") is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. Merely approaching a person, but not restricting the person's movement in any way, does not constitute a detention. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer's personal knowledge. Example: Police were justified in stopping a suspect who (i) was standing on a street corner in a high-crime area and (ii) fled upon noticing the police, even though neither factor alone would constitute reasonable suspicion to justify a stop. Illinois v. Wardlow, 528 U.S. 119 (2000). Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability. United States v. Hensley, 469 U.S. 221, 233-34 (1985). A police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014). In addition, a police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014). 2) Frisk—limited search An officer who does not have probable cause to arrest may make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon). Under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband. 3) Terry stop and frisk of a car Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and ii) The search of the passenger compartment is "limited to those areas in which a weapon may be placed or hidden." Michigan v. Long, 463 U.S. 1032, 1048-50 (1983). Police may order occupants out of a vehicle that they have lawfully stopped. Maryland v. Wilson, 519 U.S. 408 (1997). When police make a lawful traffic stop, they are automatically detaining both the driver and the passenger. They may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon. Arizona v. Johnson, 555 U.S. 323 (2009). 4) Limits on time, place, and investigative method A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time. Police may stop the person, question him for a limited period of time, and frisk him for weapons only, not evidence. Police also can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person. After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff violates the Fourth Amendment's protection against unreasonable seizures. Rodriguez v. United States, 575 U.S. ____, 135 S. Ct. 1609 (2015). When police hold a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause. 5) Development of probable cause If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle, the officer may search the passenger compartment and all containers therein, whether open or closed, if the arrestee is within reaching distance of the passenger compartment of the vehicle or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. See §I.C.4.a.4), Vehicle search incident to arrest, supra, discussing the Gant rule.

exceptions to exclusionary rule

1. 2. 3. 4. 5. 6. 7.

violation of 6th amendment right to counsel

1. Effect on Conviction If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the defendant's conviction should be automatically reversed, even without a specific showing of unfairness. Gideon v. Wainwright, 372 U.S. 335, 339 (1963). Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). 2. Effect on Guilty Plea If the defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel, then the defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission. White v. Maryland, 373 U.S. 59, 60 (1963). 3. Effect on Denial of Counsel at Nontrial Proceedings A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-error analysis. United States v. Wade, 388 U.S. 218, 223 (1967). 4. Admissibility of a Defendant's Statements to Informants Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274-275 (1980). There is no Sixth Amendment violation, however, if the police place an informant in the defendant's cell simply to listen and report the defendant's statements, without questioning the defendant. Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986). 5. Exclusionary Rule Under the Sixth Amendment a. Fruits doctrine The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel. Nix v. Williams, 467 U.S. 431 (1984). Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible. b. Impeachment If the police initiate a conversation with an accused individual who has requested counsel, any incriminating statements made by the defendant may still be used for impeachment purposes, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution's case in chief. Michigan v. Harvey, 494 U.S. 344, 350-351 (1990).

Search and seizure- government action requirement

1. Governmental Action Searches conducted by private citizens are not protected by the Fourth Amendment—there must be governmental action. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

grand juries

1. Indictment After hearing the prosecution's evidence, the grand jury decides whether there is probable cause to charge a particular defendant with a particular crime and, if so, returns a "true bill" of indictment. (This formal charging process is mandated by the Fifth Amendment under the federal system for felonies and is used in most eastern states, but a state is not constitutionally required to use this process, as the Fifth Amendment Grand Jury Clause has not been incorporated by the Fourteenth Amendment. In most western states, the charging process is initiated by filing an information by a prosecutor.) 2. Grand Jury Proceedings a. Defendant's rights The grand jury is a non-adversarial proceeding. The proceedings are conducted in secret, and the defendant has no right to present or confront witnesses or to introduce evidence. The defendant is not entitled to a dismissal due to a procedural defect in grand jury proceedings, unless the defect substantially impacted the grand jury's decision to indict. However, the defendant (or any other witness) may make a motion to seal the grand jury report if he believes that he has been defamed. 1) Double jeopardy Because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings. The refusal of a grand jury to indict a defendant with respect to a specific crime does not prevent the indictment of the defendant for the same crime by another grand jury. United States v. Williams, 504 U.S. 36, 49 (1992). (See §VI.A., Double Jeopardy, infra.) b. Role of the prosecutor The prosecutor is the advisor to the grand jury. As such, the prosecutor's role is to advise the grand jury with respect to the law and assist the grand jury in its job of issuing subpoenas for witnesses and evidence. The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury. Thus, a grand jury indictment cannot be dismissed for the prosecutor's failure to present exculpatory evidence, unless the prosecutor violated a preexisting constitutional or legislative rule. The prosecutor is subject to the grand jury secrecy rules. c. Witness's rights A grand jury witness has no right to counsel in the grand jury room. The witness may request permission to consult with counsel outside of the jury room before answering a grand jury question. A prosecutor's failure to give a Miranda warning to a witness who then lies to a grand jury does not prevent the prosecution of the witness for perjury. United States v. Wong, 431 U.S. 174 (1977). Further, a witness who is a target of an investigation and may become a defendant is not entitled to a warning of his putative defendant status; the failure to receive such a warning does not protect a lying witness from a perjury conviction. United States v. Washington, 431 U.S. 181 (1977). d. Grand jury's role The grand jury has subpoena power to investigate matters before it or to initiate criminal proceedings. The subpoena can be quashed by the opposing party if he can demonstrate that the evidence sought is not relevant to the investigation. However, the witness or defendant cannot attack the subpoena based on the grand jury's lack of probable cause. The grand jury is not restricted to hearing evidence that would be admissible at trial; an indictment may generally be based on hearsay or illegally obtained evidence. United States v. Calandra, 414 U.S. 338, 348 (1974) (illegally seized evidence admissible in grand jury proceeding); Costello v. United States, 350 U.S. 359 (1956) (hearsay evidence admissible in grand jury proceeding). (Note: By federal statute, information obtained from an illegal wiretap cannot be presented to a grand jury. 18 U.S.C. 2515.) The grand jury may not exclude members of minority races, regardless of whether they are the same race as the defendant. Such exclusion will lead to a reversal of the indictment without regard to the harmlessness of the error. Campbell v. Louisiana, 523 U.S. 392 (1998); Vasquez v. Hillery, 474 U.S. 254 (1986).

fruits of tained confession

1. Physical Evidence Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police's failure to give Miranda warnings) is admissible, so long as that confession was not coerced. United States v. Patane, 542 U.S. 630 (2004). 2. Second Confession A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Mirandawarnings. Oregon v. Elstad, 470 U.S. 298 (1985). However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect's position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings. Miranda; Missouri v. Seibert, 542 U.S. 600, 611 (2004).

5th amendment- privilege against self incriination at trial

1. Scope of Privilege A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings. The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called "opening the door" by the defendant. 2. Voluntariness Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights. Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected. 3. Immunity The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution. a. Transactional immunity Often called "blanket" or "total" immunity, "transactional immunity" fully protects a witness from future prosecution for crimes related to her testimony. b. Use and derivative-use immunity "Use and derivative-use" immunity only precludes the prosecution from using the witness's own testimony, or any evidence derived from the testimony, against the witness. The Supreme Court has held that the grant of "use and derivative-use" immunity is all that is constitutionally required to compel the testimony of a witness. Kastigar v. United States, 406 U.S. 441, 452-453 (1972). Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary. c. Federal and state immunity Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. See United States v. Balsys, 524 U.S. 666 (1998); Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding. 4. Prosecutorial Comment The prosecutor may not comment on the defendant's exercise of the privilege against self-incrimination at trial. It is per se reversible error.

6th amendment- ineffective assistance of counsle

1. Standard of Competence The right to counsel encompasses the right to be assisted by a reasonably competent attorney and is presumed. The right to effective counsel extends to the defendant's first appeal. To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that: i) Counsel's representation fell below an objective standard of reasonableness; and ii) Counsel's deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel. Bell v. Cone, 535 U.S. 685 (2002); Jones v. Barnes, 463 U.S. 745 (1988); United States v. Cronic, 466 U.S. 648 (1984). The failure of defense counsel to raise a federal constitutional issue that was law at the time of the trial, but was later overruled, does not constitute ineffective assistance of counsel. Lockhart v. Fretwell, 506 U.S. 364 (1993). 2. Conflict of Interest The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. In general, to overturn a conviction on the basis of a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney's performance. a. Actual conflict To find an actual conflict, a court must determine that the defense attorney is subject to an obligation or unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the defendant. b. Adverse impact Adverse impact can be established by demonstrating that some plausible alternative defense strategy or tactic might have been pursued and such strategy or tactic was inherently in conflict with, or not undertaken, due to the attorney's other loyalties or interests. The conflicting character of the strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused. c. Knowledge of the court If an attorney representing codefendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, then the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction. Holloway v. Arkansas, 435 U.S. 475, 484 (1978). Actual conflict and prejudice are presumed under such circumstances. Unless the trial court knows or reasonably should know that a conflict exists, however, the court is not required to inquire about multiple representations. Cuyler v. Sullivan, 446 U.S. 335, 347-348 (1980). Actual conflict (rather than potential conflict) is required to be shown on appeal if the issue of separate trials was not brought up during the trial, and the defendant must show that the conflict adversely affected counsel's performance. Mickens v. Taylor, 535 U.S. 162, 173 (2002). d. Rule 44(c) When co-defendants are represented by the same attorney, Rule 44(c) of the Federal Rules of Criminal Procedure requires the court to conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Failure to comply with the Rule, though, will not constitute a per se reversible error, and an appellate court will likely ask whether the end result was representation by counsel under an actual conflict. e. Disqualification despite waiver A trial court has the authority to disqualify a defense attorney, even over the objection of the defendant, if the court concludes that there is serious potential of a conflict of interest. Wheat v. United States, 486 U.S. 153, 158-159 (1988). 3. Communication of Formal Plea Offer The right to effective assistance of counsel extends to the plea bargaining stage. Defense counsel must accurately communicate to the defendant any formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. To show prejudice once a plea offer has lapsed or has been rejected because defense counsel failed to accurately communicate the offer, a defendant must demonstrate a reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel. A defendant must also demonstrate a reasonable probability that the prosecutor and trial court would have accepted the plea if they had the discretion to reject it under state law. Missouri v. Frye, 566 U.S. 134 (2012). Ineffective assistance of counsel at the plea bargaining stage may constitute reversible error even if the subsequent trial and conviction are fair. Lafler v. Cooper, 566 U.S. 156 (2012).

Search incident to arrest

1. chimmel standard 2. time limit 3. scope 4. see vehicle search incident to arrest 5. impounded vehicle

exceptions to miranda

1. grant jury 2. public safety 3. routine booking 4. undercover police

warrant exceptions

1. search incident to lawful arrest If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest. See chimel standard 2. excegent circumstances 3. stop and frisk 4. automovile exception 5. plain view doctrine 6. admin searches 7. wire tapping

TEST: when can an officer legally stop an automobile at a checkpoint?

1. stop must be based on neutral, articulable standards 2. purpose of stop must be closely related to an issue affecting automobiles ex: sobriety ok drug search not ok

6th amendment- Corpreal IDs

2. Post-Indictment Identifications—Sixth Amendment Right to Counsel A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). The prosecution bears the burden of establishing that counsel was present. The right to counsel does not apply to any pre-indictment lineup, even if it takes place after the defendant has been arrested for another unrelated crime. Kirby v. Illinois, 406 U.S. 682, 690-691 (1972). a. Waiver The defendant can waive the right to have counsel present at the lineup, provided that waiver is made knowingly and intelligently. The prosecution bears the burden of demonstrating that the waiver was valid. b. Remedy for violation Testimony about a post-indictment, pre-trial identification in the absence of counsel is inadmissible at trial, but the witness may still identify the defendant at trial if the prosecution can show that the identification has independent reliability. United States v. Wade, 388 U.S. 218 (1967).

Due process- impermissible suggestive ID procedures

A defendant also has a due process right pursuant to the Fifth Amendment (for federal prosecutions) and the Fourteenth Amendment (for state prosecutions) with regard to a witness's identification based on an identification procedure arranged by the police that was impermissibly suggestive. This right exists whether the identification procedure was corporeal or non-corporeal, and whether the identification took place before or after the indictment of the defendant. Perry v. New Hampshire, 565 U.S. 228 (2012). a. Two-prong test Courts use a two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification. To prevail, the defendant must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification. In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable. In making its ruling, the court is to consider the following factors: i) The witness's opportunity to view the defendant at the time of the crime; ii) The witness's degree of attention at the time of the crime; iii) The accuracy of the witness's description of the defendant prior to the identification; iv) The level of certainty at the time of the identification; and v) The length of time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Only when the indicators of a witness's ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion should the identification be suppressed on due process grounds. Perry v. New Hampshire, supra, at 725, quoting from Manson v. Brathwaite, 432 U.S. 98, 114 (1977). This test applies both to an out-of-court identification and an in-court identification that is based on a prior out-of-court identification. 1) Impermissibly suggestive Police identification procedures that are highly suggestive usually are also impermissibly suggestive. However, even when such procedures are highly suggestive, they may not be impermissibly so, if they are necessary. For example, an identification made by a witness of defendant brought in handcuffs to the witness's hospital room by uniformed police officers was not impermissible suggestive because the witness was the only person who could identify the perpetrator, the witness could not leave her hospital room, and it was uncertain whether the witness would survive. Stovall v. Denno, 388 U.S. 293 (1967). In addition, a defendant's due process rights are violated only if it is the police who have arranged the identification procedure to be impermissibly suggestive. For example, when a witness, asked by a police officer to describe the perpetrator of an automobile break-in, pointed out her window to the man standing next to the police officer, the identification—although made as a consequence of suggestive circumstances—was not due to identification procedures arranged by the police. Perry v. New Hampshire, supra. b. Suppression hearing A defendant who has moved to suppress an identification is entitled to a suppression hearing. This hearing usually is held outside the presence of the jury, although exclusion of the jury is not constitutionally required. c. Remedy for violation A conviction as the result of a trial in which an illegal identification was admitted will be overturned unless, under the doctrine of harmless error, the appellate court is convinced beyond a reasonable doubt that the improperly admitted identification did not contribute to the verdict.

5th amendment- privilege against compulsory self incrimination- waiver

A defendant waives the privilege by taking the witness stand; a witnesswaives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.

1. persons

A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually.

locations searched- prison

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. Hudson v. Palmer, 468 U.S. 517 (1984). Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee's cell may be subject to a routine search, and the detainee's person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. Bell v. Wolfish, 441 U.S. 520 (1979). Jail administrators may also require all arrestees committed to the general population of a jail to undergo no-touch visual strip searches, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the arrestee possesses a concealed weapon or other contraband. Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012).

search warrant requirements

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.

arrest warrants

An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause that a crime has been committed and that this person was involved in committing the particular crime. However, an arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when the officer making the arrest independently had probable cause for making the arrest. a. Entry into home A warrant to arrest an individual implicitly authorizes entry into the arrestee's home to serve the warrant if the police have reason to believe that the arrestee is present. A police officer may not arrest a person in another person's home without an arrest warrant for the subject and a search warrant for the third party's home, absent exigent circumstances or valid consent to enter the third party's home. Steagald v. United States, 451 U.S. 204 (1981).

5th amendment- miranda

Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Mirandarights). Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect's "unwarned but voluntary statements." United States v. Patane, 542 U.S. 630, 640 (2004).

locations searched- motel

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk's consent to a governmental search of a room during the time it is rented is insufficient to justify the search. Stoner v. California, 376 U.S. 483 (1964).

arraignment

At an arraignment, the court informs the defendant of the crime with which the defendant has been charged and elicits the defendant's response (i.e., plea) to those charges. At this time, the court may appoint counsel for an indigent defendant. These events may also take place at the initial appearance.

Chilmel standard

Chimel standard-A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (i.e., his "wingspan") from which a weapon may be concealed or evidence destroyed. If the arrest occurs in a home, it is permissible to conduct a "protective sweep" for confederates (i.e., people who might launch an attack) in spaces immediately adjacent to the place of arrest, even without probable cause or reasonable suspicion.

TEST: was the info provided by a police informant sufficient to create PC?

Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant.

custodial interrogation- def

Custodial interrogation is questioning initiated by a known (as opposed to undercover) law-enforcement officer after a person is in custody.

standing

Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. It is not enough that the introduction as evidence of an item seized may incriminate the defendant.

detention hearing

In conjunction with the defendant's initial appearance or at a separate hearing, the court may determine whether to release the defendant and any conditions upon such release. At such time, the court may set bail (see §C. Right to Bail, infra).

locations searched- business premises

In general, business premises are protected by the Fourth Amendment. G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). However, such premises may be subjected to administrative searches, see § I.C.4.g., Administrative searches, infra.

defendant's competency

Incompetency is a bar to trial. The judge has a constitutional duty to investigate and determine the competence of the defendant to stand trial if such evidence is apparent to the judge. A separate hearing is held to assess the defendant's competency. The test for whether a defendant is competent to stand trial is the same test for determining whether the defendant is competent to plead guilty: whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding. If the defendant is declared mentally incompetent to stand trial, and the charge is a serious criminal offense, then the government may administer antipsychotic drugs. Three conditions must be met before the defendant can receive these drugs: i) The treatment should not cause serious side effects that would affect the fairness of the trial; ii) The treatment is necessary and there is no less intrusive method to further the government's important interest; and iii) The treatment is medically appropriate. Sell v. United States,539U.S.166 (2003). Insanity Defense Distinguished: The insanity defense considers the defendant's mental condition at the time of the crime, whereas incompetence concerns the defendant's mental condition at the time of the trial. Detention also varies depending on whether it is based on incompetency or insanity. In a successful insanity defense, the defendant may be detained in a mental hospital for a longer term than incarceration requires. If a defendant is found to be incompetent, confinement in a mental hospital must be limited to a brief period of time for evaluation. The conviction of a legally incompetent defendant or the failure of the trial court to provide an adequate competency determination violates due-process principles by depriving the defendant of the constitutional right to a fair trial. State courts may place the burden of proving incompetence on the defendant, but they may not require the defendant to prove it by clear and convincing evidence.

knock and announce

Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally announce his purpose before entering A state may permit an exception to the rule if the entry is made under exigent circumstances, such as when there is a reasonable belief of danger to the officer or destruction of evidence violation of the "knock and announce" rule does not trigger the exclusionary rule

stop and frisk

NOT an arrest Stop and Frisk A temporary detention for the purpose of a criminal investigation is a "stop," not an arrest, but is still a seizure for Fourth Amendment purposes. The test for a stop is whether the officer, by means of physical force or show of authority (to which the subject has submitted), has in some way restrained the liberty of the citizen. Seizure includes physical restraint or an order to stop so that the officer can frisk and ask questions on the street.

TEST: immigration check points

Near the US border: any car may be stopped on a random basis at the border of the US without a reaosnable suspicion of wrongdoing Not near US border: all cars may be stopped at a fixed chekpoint without a reaosnable suspicion of violation of immigration law so long as no car is singled out and randomly stopped without a particularized and objective basis

6th amendment- blockburger test

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. McNeil v. Wisconsin, 501 U.S. 171, 175-176 (1991). 1. Blockburger Test Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not. Texas v. Cobb, 532 U.S. 162 (2001); Blockburger v. United States, 284 U.S. 299, 304 (1932). 2. Compare to Miranda Unlike under the Miranda standard, under the Sixth Amendment standard, the requirement for counsel to be present applies only to interrogations about the offense charged. However, like with Miranda, the defendant may make a knowing and voluntary waiver of the right to counsel being present.

anticiptory warrant

Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Grubbs, supra.

5th amendment- privilege against compulsory self incrimination

Rule- The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment. 1. persons- 2. testimonial 3. compulsory disclosure (vs. voluntary)

Unreasonable seizure of persons- arrest

Seizure: Objective Test—Not Free to Leave A person is seized by the police when the officer physically touches a subject or when the subject submits to the officer's show of authority. Terry v. Ohio, 392 U.S. 1 (1968). When the actions of the police do not show an unambiguous intent to restrain or when the individual's submission to a show of governmental authority takes the form of passive acquiescence, a seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave. The test is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.

initial appearance

Soon after the defendant is arrested, the defendant must be brought before a judge who advises the defendant of the charges against him and of his rights and who appoints counsel if the defendant is indigent. During this initial appearance, which may be held in conjunction with a Gerstein hearing, the judge may also determine whether the defendant should be released prior to trial and the conditions of the release (e.g., bail), accept a plea from the defendant, and set a date for a preliminary hearing.

fruits of the poisonous tree

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint, also known as the "fruit of the poisonous tree." Example: A police officer conducts an unconstitutional search of a home, finds an address book, and uses that address book to locate a witness. The witness will not be allowed to testify, because her testimony would be a "fruit" of the unconstitutional search.

preliminary hearing to determine PC to prosecute

Subsequent to the defendant's initial appearance, a preliminary hearing may be held to determine whether there is probable cause to believe that the defendant has committed a specific crime. At this hearing, which is an adversarial proceeding, the defendant has the right to counsel. Coleman v. Alabama, 399 U.S. 1 (1970). A defendant who has been indicted by a grand jury is not entitled to this hearing.

5th amendment

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.

6th amendment right to counsel- types of proceedings

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended.

6th amendment

The Sixth Amendment provides that the accused shall have the right to a public trial, the right to confront witnesses against him, the right to cross-examine witnesses, the right to be present at his own trial, and the right to "the assistance of counsel for his defense." The right to assistance of counsel encompasses not only the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel.

6th amendment right to counsel- applicable stages

The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. There is no right to counsel at post-conviction proceedings such as parole and probation hearings or habeas corpus hearings.

6th amendment- waiver

The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285 (1988); Brewer v. Williams, 430 U.S. 387 (1977). Even though Miranda rights purportedly arise from the Fifth Amendment, an accused who receives proper Miranda warnings will be considered sufficiently apprised of his Sixth Amendment rights and the consequences of abandoning those rights. As long as the defendant is given Miranda warnings and voluntarily waives those rights, the defendant's waiver of his Sixth Amendment rights will also be considered knowing and intelligent. Patterson v. Illinois, 487 U.S. 285 (1988). EXAM NOTE: Remember, even if the defendant has made a valid waiver of his right to counsel, statements made during interrogation must be voluntary to be admissible at trial, i.e., the police still cannot use compelled statements. b. Subsequent waivers pursuant to Edwards and Montejo Recall that in the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated custodial interrogation unless counsel is present. Edwards v. Arizona, 451 U.S. 477 (1981). Under the Edwards rule, any subsequent waiver of the Fifth Amendment right to counsel under these circumstances is presumed to be involuntary. McNeil v. Wisconsin, 501 U.S. 171 (1991). A similar presumption used to apply in the Sixth Amendment context, but has been overturned. See Michigan v. Jackson, 475 U.S. 625 (1986) (overturned by Montejo v. Louisiana, 556 U.S. 778 (2009)). Therefore, if an accused has not actually asserted his right to counsel (e.g., if the court automatically appoints counsel to the accused before trial), there is no presumption that any subsequent waiver of the right to counsel will be involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009). The Edwards rule will still apply if the accused has actually asserted his right to counsel, but remember that the Edwards rule only applies in custodial interactions. See Edwards v. Arizona, 451 U.S. 477 (1981). Therefore, even after Sixth Amendment rights attach, the police may initiate non-custodial interactions with the accused outside the presence of his lawyer, and there will be no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary. Montejo v. Louisiana, 556 U.S. 778 (2009). c. Right to proceed pro se A defendant has the constitutional right to refuse counsel and proceed pro se at trial. The waiver of the right to counsel must be knowingly and intelligently made. To that end, the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an "ineffective assistance of counsel" defense on appeal. Faretta v. California, 422 U.S. 806 (1975). In addition, the court may, even over the defendant's objection, "appoint a 'standby counsel,' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 834, fn 46. A defendant who is competent to stand trial may nevertheless be found incompetent to represent himself. Indiana v. Edwards, 554 U.S. 164 (2009).

use of miranda statements at trial

The failure to give Miranda warnings is not a violation until a statement obtained without the use of warnings is used at trial. Chavez v. Martinez, 538 U.S. 760 (2003). 1. impeachment 2. involuntary confessions

admin searches

The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. The following administrative-type searches may be validly made without a warrant: i) Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane; ii) Searches of businesses in highly regulated industries such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and under the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry; iii) Oral statements seized by wiretaps, when matters of national security are at issue; iv) Searches of students by public school officials, so long as they are based on reasonable grounds (this standard is lower than probable cause and calls for only a "moderate chance" of finding the expected evidence, rather than a "fair probability" or "substantial chance"), and the measures adopted for the search are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. T.L.O., 469 U.S. 325, 340-341 (1985); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370-371 (2009). v) Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season. To be a special need, the state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search. Even if the need exists, it must be balanced against the privacy interest at stake and the character of the intrusion. Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002); vi) Inventory searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner's property while in custody, to protect police from claims of theft, and to protect officers from danger. Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant; vii) Routine international border searches of border crossers and their belongings within the United States, including (i) stops, but not searches, by roving patrols who reasonably suspect that undocumented immigrants may be in an automobile, (ii) opening of international mail if authorities have reasonable cause to suspect contraband in the mail, and (iii) subsequent reopening of mail after the item had been resealed and delivered to the recipient; viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility (e.g., to get drunk drivers off the road); ix) Factory searches of the entire work force to determine citizenship of workers; x) Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if they are justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need; xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach; xii) Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole. The rationale being that because there is a greater need to search parolees since they are less likely to be law-abiding citizens, a parolee has a lower expectation of privacy; xiii) Seizure of contaminated or spoiled food; and xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson. Michigan v. Clifford, 464 U.S. 287 (1984) (search of home); Michigan v. Tyler, 436 U.S. 499 (1978) (search of business (furniture store)).

2. testimonial

The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.

6th amendment- non critical stages

The right to counsel generally does not apply to the following events: i) A witness viewing photos of the alleged defendant; ii) Pre-charge (investigative) lineups; iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples; iv) Hearings to determine probable cause to detain the defendant (Gersteinhearing); v) Discretionary appeals; and vi) Post-conviction proceedings, such as parole or probation hearings, including habeas corpus. (The Sixth Amendment does apply, however, to probation revocation hearings that include sentencing.)

miranda warnings- content

The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision. Law-enforcement officials must inform suspects: i) Of their right to remain silent; ii) That any statement uttered may be used in court; iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and iv) That an attorney will be appointed to represent indigent defendants. b. Timing The Miranda warning must be given before interrogation begins. If interrogation is stopped for a long duration, the warning must be given again.

6th amendment- eyewitness ID procedures

There are two types of eyewitness identification procedures: corporeal and non-corporeal. Corporeal identifications are "in-person," as in lineups or show-ups. Non-corporeal identifications are not in-person and involve police officers using photo arrays for a witness to identify the perpetrator of the crime.

Right to bail

There is no explicit constitutional right to bail. However, any denial of bail must comply with the Due Process Clause. Therefore, the setting of excessive bail or the refusal to set bail is immediately appealable. Furthermore, bail set higher than an amount reasonably calculated to ensure the defendant's presence at trial is "excessive" under the Eighth Amendment. 1. Statutory Bail Provisions The Bail Reform Act of 1984 governs release or detention determinations in federal courts in criminal proceedings. Many states have modeled similar statutory bail provisions on the Act. 2. Presumptions Pre- and Post-Conviction There is a presumption in favor of pre-trial release. A detention hearing must be held at the initial appearance for there to be a release. However, there is a presumption against bail post-conviction, pending appeal. The Federal Rules of Evidence do not apply at detention hearings. 3. Pre-Trial Detention Certain pretrial detention practices that are reasonably related to maintaining jail security are permissible and do not violate due process or the Fourth Amendment. These include routine inspections of inmates' cells, prohibiting receipt of outside food or personal belongings, body-cavity searches, and double bunking.

non-corporeal ID procedures

There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted.

Vehicle search incident to arrest

To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer's safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

wire tapping

To obtain a warrant authorizing a wiretap, officers must satisfy the below requirements. The warrant must: i) Be limited to a short period of time; ii) Demonstrate probable cause that a specific crime has been or is about to be committed; iii) Name the person or persons to be wiretapped; iv) Describe with particularity the conversations that can be overheard; and v) Include provisions for the termination of the wiretap. Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court. Note that a person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation. United States v. White, 401 U.S. 745 (1971). Furthermore, a speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim. Katz v. United States, 389 U.S. 347 (1967). In addition, a wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act. However, there is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

Gerstein hearing

Under the Fourth Amendment, a preliminary hearing must be held after the defendant's arrest to determine whether probable cause exists to hold the defendant, unless such determination has already been made before the defendant's arrest through a grand jury indictment or the judicial issuance of an arrest warrant. Gerstein v. Pugh, 420 U.S. 103 (1975). This hearing, known as a Gerstein hearing, need not be adversarial. There is no right to counsel at this hearing, and hearsay evidence may be introduced, but a hearing not held within 48 hours after arrest is presumptively unreasonable. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). However, the failure to hold this hearing does not affect the prosecution of the defendant for the charged offense, other than the exclusion of any evidence discovered as a consequence of the unlawful detainment. Under the Fifth Amendment, all felony charges must be by indictment of a federal grand jury, unless waived by the defendant.

eclusionary rule

Under the exclusionary rule, evidence obtained in violation of the accused's Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt

warrantless arrests

Unlike searches, police generally do not need a warrant to make a valid arrest in a public place, even if they have time to get one. U.S. v. Watson, 423 U.S. 411 (1976). The police, however, must have a warrant to arrest an individual in his own home, absent exigent circumstances or valid consent to enter the arrestee's home. Payton v. New York, 445 U.S. 573 (1980). a. Crime committed in the presence of the arresting party Either a police officer or a private individual has a right to arrest without an arrest warrant if either a felony or a misdemeanor is committed in the arresting party's presence. In determining whether a crime has been committed, the question is whether an officer could conclude—considering all of the surrounding circumstances—that there was a substantial chance of criminal activity. District of Columbia v. Wesby, 583 U.S. ___ (2018). b. Crime committed outside the presence of the arresting party In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony, but a private individual may make an arrest only if (i) a felony has actually been committed and (ii) the private individual reasonably believes that the person being arrested is guilty. c. Misdemeanor arrest A warrantless arrest of a person for a misdemeanor punishable only by a fine is not an unreasonable seizure under the Fourth Amendment. Atwater v. Lago Vista, 532 U.S. 318 (2001). Note that the misdemeanor must have been committed in the presence of the arresting party; probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest. d. Effect of invalid arrest An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant). An unlawful arrest has legal significance, however, when there is a seizure of evidence. Evidence seized pursuant to an unlawful arrest may be suppressed at trial.A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed. See Wong Sun v. U.S., 371 U.S. 471 (1963).

Exigent circumstances

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. In determining the existence of exigent circumstances, courts use the "totality of circumstances" test. As a corollary to this doctrine, police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. Illinois v. McArthur, 531 U.S. 326 (2001). The exigent-circumstances rule does not apply when the police create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849 (2011). 1. hot pursuit 2. emergency situations

6th amendment- indigents

When the right to counsel exists, an indigent defendant has the right to the appointment of counsel. Johnson v. Zerbst, 304 U.S. 458 (1938) (federal trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (state trial, Sixth Amendment right to counsel incorporated by Due Process Clause of the Fourteenth Amendment).

6th amendment- critical stages

a. Critical stages The Supreme Court has summarized its definition of "critical stage" as those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). Generally, the Sixth Amendment right to counsel attaches at the following critical stages: i) Post-indictment lineups and in-person identifications; ii) Post-indictment interrogations, whether custodial or otherwise; iii) Arraignment and preliminary hearing to determine probable cause to prosecute, bail hearings, and pre-trial motions; and iv) Plea bargaining, guilty pleas, trials, and sentencing. Note that direct appeals as a matter of right, while not technically covered by the Sixth Amendment, do require that the state provide counsel to the indigent on equal protection grounds. Douglas v. California, 372 U.S. 353 (1963).

5th amendment- privilege against compulsory self incrimination- invoking

a. Defendant's privilege A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state's inability to compel the defendant to testify. The prosecution cannot bring the defendant's failure to take the stand to the jury's attention. b. Witness's privilege A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination. Douglas v. Alabama, 380 U.S. 415 (1965).

TEST: when can an officer legally stop an automobile?

an officer must have an articularble, reasonable suspicion of a violation of the law in order to stop an automobile.

plain view doctrine

any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view while properly executing the warrant, whether or not specified in the warrant, may be seized

TEST: when has a seizure of a person ocurred?

arrest or equivilent of arrest equivolent of arrest = in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave.

6th amendment- invoke

automatic offense specific

TEST: when is the curtilage protected by the 4th amendment?

curtilidge = the area immediately surrounding the home Factors: 1. proximity to home 2. whether it is within an eclosure surrounding the home 3. the nature of the uses to which the area is put 4. the steps taken by the resident to protect from observation by a passerby

Automobile exception

d. Automobile exception The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. United States v. Ross, 456 U.S. 798, 825 (1982). The search may also extend to passengers' belongings, Wyoming v. Houghten, 526 U.S. 295, 302 (1999), as well as to mobile homes, California v. Carney, 471 U.S. 386, 393-394 (1985). Any other evidence observed in plain view may also be seized. Note that the automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. Collins v. Virginia, 584 U.S. ___ (2018). 1) Pretextual stop Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated. Whren v. United States, 517 U.S. 806 (1996) (seizure of illegal drugs constitutional even though police stopped a car for a traffic violation as a pretext to investigate a hunch that the occupants possessed drugs). 2) Containers within a car Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for. If the police have probable cause to search only a particular container, they may search only that container, and not the entire car. Arkansas v. Sanders, 442 U.S. 753 (1979); California v. Acevedo, 500 U.S. 565, 570 (1991). (Note, however, that what the officers find in one container may give them probable cause to believe evidence is contained elsewhere in the car.) Example: A driver left a residence holding a closed paper bag, which officers had probable cause to believe contained narcotics, based on an informant's tip. The bag was placed in the trunk, and the driver drove away. Police were authorized to stop the vehicle, open the trunk, and inspect the bag. However, the search was limited to the bag only. If they did not find the bag, they could only open and search containers big enough to store the bag. Id. at 579-80. 3) Trunk If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

search

definition The Violation of a Reasonable Expectation of Privacy Only unreasonable searches and seizures are subject to Fourth Amendment protections. An unreasonable search occurs when the government (1) invades a place protected by a reasonable expectation of privacy, or (2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information. Katz v. United States, 389 U.S. 347 (1967); Florida v. Jardines, 569 U.S. 1 (2013) (using a drug-sniffing dog on a homeowner's porch for the purpose of investigating the contents of the home constituted a search); United States v. Jones, 565 U.S. 400 (2012) (placement of GPS device on defendant's vehicle for the purpose of monitoring the vehicle's movements constituted a search).

plain view doctrine

e. "Plain-view" doctrine 1) In public view Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public (e.g., physical characteristics, vehicle identification numbers, or items in open fields). 2) In private view In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item (e.g., viewing an object through a window is insufficient if the officer does not have lawful access to the inside of the house). The discovery of the item does not need to be inadvertent. Horton v. California, 496 U.S. 128 (1990); Arizona v. Hicks, 480 U.S. 231 (1987). Example: Officer Olivia was executing a valid warrant to search Defendant Doug's home for a gun suspected to have been used in a murder. On entering the premises, Olivia saw what appeared to be bags of cocaine piled on Doug's coffee table. Under the "plain view" doctrine, Olivia could properly seize the bags, even though the warrant applied only to a gun. f. Consent searches Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search. 1) Voluntary For permission to constitute consent, the permission must be given voluntarily. Permission given under threats of harm or compulsion does not constitute consent. In determining whether a person's response constitutes consent, courts evaluate the totality of the circumstances in which the response is made. a) False assertion of authority Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary. Consequently, if the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. Bumper v. North Carolina, 391 U.S. 543, 549 (1968). b) Knowledge of the right to withhold consent The failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973). c) Consent based on deceit A government agent pretending to be a narcotics buyer, for example, may accept an invitation to enter the premises for the purposes contemplated by the occupant (i.e., to purchase drugs). The officer or agent may then seize things in plain view. Lewis v. United States, 385 U.S. 206 (1966). 2) Third-party consent When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue. a) Property of a third party Generally, a third party has the authority to consent to a search of property that she owns or occupies. As such, the defendant cannot suppress evidence seized during such a search on the grounds that he (the defendant) did not consent to the search. b) Property of the defendant Generally, a third party does not have the authority to consent to a search of property owned or occupied by the defendant. The defendant can generally suppress evidence seized during such a search unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii)the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched (e.g., a shared duffle bag). Frazier v. Cupp, 394 U.S. 731, 740 (1969). c) Jointly controlled property When the property to be searched is under the joint control of the defendant and a third party (e.g., co-tenants of an apartment, a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search. i) Defendant not present If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes. U.S. v. Matlock, 415 U.S. 164, 170-171 (1974). In addition, the third party's consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. Illinois v. Rodriguez, 497 U.S. 177, 184 (1990). ii) Defendant present When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. Georgia v. Randolph, 547 U.S. 103, 114-116 (2006). When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time. Fernandez v. California, 571 U.S. 292 (2014). iii) Ownership versus current control In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. For example, a landlord may not consent to a search of the tenant's premises. Chapman v. United States, 365 U.S. 610, 617 (1961). Similarly, a hotel clerk cannot consent to the search of a guest's room until the guest has permanently checked out. Stoner v. California, 376 U.S. 483, 489 (1964). However, some circuits have held that the owner of a house can consent to a search of rooms occupied by non-paying guests. iv) Parental consent When a child lives with a parent, the parent has the authority to consent to a search of a child's room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child's room, depending on the age of the child. U.S. v. Block, 590 F.2d 535, 540 (4th Cir. 1979). 3) Scope of consent Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable officer would believe it extends. For example, consent by a driver to search his car for drugs extends to a closed container within the car that could contain drugs. Florida v. Jimento, 500 U.S. 248, 252 (1991). 4) Burden of proof The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

basis for PC

i) A police officer's personal observations; ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches. Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

search of person not specified in search warrant

independent justification is needed to search persons not named in search warrant- close proximity to named person is not sufficient reasonable detention for reasonable time during search OK = handcuffs ok

persons and their attributes

no reasonable expectation of privacy in one's physical characteristic

Car's VIN

no reasonable expectation of privacy in the VIN affized to a car. so cop moving papers to see vin not a search, so cop finding a gun while moving the papers to see vin admissible

TEST: checkpoint maintained by police to wind witnesses to a crime (not suspects)

not per se unreasonable so long as 1. checkpoint stops primary law enforcement purpose is to elicit evidence to help them apprehend individuals other than the vehicles occupants 2. stop advanced a public concern to a significant degree 3. the police appropriately tailored their check point stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by 4th amendment

abandoned property

not protected by 4th amendment ex: garbage set curbside

TEST: when does an unreasonable search occur?

the government 1. invades a place protected by a reasonable expectation of privacy OR 2. physicically intrudes upon a constitutionally protected area for the purpose of gathering information Constitutionally protected area = persons, houses, papers or affects)

Reasonable expectation of privacy v. no reasonable expectation of privacy

yes home if immediate right to possession overnight guest- areas permitted to enter -unless illegal business use -unless open fields motels business premises -unless admin search no open fields guest in home using for illegal business purposes prison -except pretrial detainee -but still can be subjected to routine searches