Criminal Evidence Final

Frisk

- A frisk is a search under the Fourth Amendment. But it is reasonable if it is done for the protection and safety of the officer and not as a pretext to look for contraband - An officer must have reasonable suspicion that the suspect is armed or dangerous. If an officer feels something he or she believes is a weapon, the officer may reach into the suspect clothes to retrieve it - If an officer can tell by "touch" that an item is contraband, then he or she may seize it under the "plain feel" exception

Examples of Actions that are not Seizures

- A police officer observed a shopping bag in a trash barrel on the curb for the garbage truck to pick up the next morning. The officer picked up the sack, examined the contents, and put it in an evidence bag. - Everything in the trash barrels has been discarded by the owner. It no longer belongs to anyone; therefore, picking it up is not a seizure.

Field Interviews

- A stop is a seizure under the Fourth Amendment. But officer only needs reasonable suspicion - An officer must have specific articulable facts that would lead a reasonable police officer to conclude that criminal activity may be afoot - Time limits on reasonable detentions? USSC has not set a "bright line" rule.

Examples of Vehicle Searches That Would Not Qualify as Search Incident to Arrest

- A traffic officer stopped a car for speeding. After writing a citation, the officer searched the passenger compartment of the car. - The right to search the passenger compartment incident to an arrest applies only if there is a custodial arrest. The only search that applies when the driver is given a citation is the search for weapons authorized in Terry v. Ohio

Abandoned Property Searches

- Abandoned Property - no expectation of privacy in abandoned property - Abandonment = psychically giving up possession of something objective - Intending to give up the expectation of privacy subjective - To determine this, the USSC created the totality of the circumstances test.

Other impermissible ways of obtaining evidence

- Any method that shocks the conscious of the court or offends our sense of justice - Piercing the skin, even with a needle, to obtain a blood sample without a warrant Except: - The nations ruled in 1966 that the police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner

The right to remain silent (MW)

- Applies to verbal and non-verbal communications. - Anything you say "can and will" be used against you - Confessions, impeachment, knowledge, etc - Note: attempts to speak to the police "off the record" will indicate that the suspect does not understand his or her rights. - This happens after the arrest occurs. It is on the police to explain that to the individual until they understand it

Invoking the Privilege

- During Field interviews prior to arrest, a witness may invoke the Fifth amendment. But Police do not have to inform the witness of that right. - During custodial interrogations, the police must inform the defendant of his rights. In order to question the defendant, he or she must make a knowing, intelligent and voluntary waiver of his or her rights. - You can waive your Fifth Amendment rights, but it must be knowing and voluntary

Examples of Consent Search

- During a routine traffic stop, the officer politely asked the driver, "Do you mind if I look in the trunk?" The driver replied, "OK." - An officer handling a domestic violence call arrived after the batterer left and asked the battered woman, "Do you mind if I look to see if there are any guns in the house? I can take the guns into custody so he won't be able to shoot you." The woman said, "Yes, please do!"

Examples of Non-testimonial Compulsion

- Erin was arrested on suspicion of driving under the influence of alcohol. The officer took her to the nearest emergency room and had a nurse draw a blood sample. - Erin cannot invoke the Fifth Amendment self-incrimination privilege as grounds for refusing to give the blood sample because blood is not testimonial evidence.

Field Interviews, Arrests, and Jail Searches

- Fingerprinting - a suspect can only be fingerprinted if they consent, or the police have probable cause to arrest - Miranda Warning - required after the defendant has been arrested and prior to interrogation OR, when the police officer has the probable cause to arrest - Search incident to arrest - immediately after an arrest, the police may conduct a search of the suspect's person and the area immediately under the person's control - Jail searches - the USSC allows them for any legitimate administrative reason

If you are stopped by an officer, are you required to identify yourself?

- Hiibel v Nevada, 542 U.S. 177 (2004), which held that the name disclosure did not violate Fourth Amendment prohibition on unreasonable searches and seizures. The Hiibel court also held that, because Hiibel had no reasonable belief that his name would be used to incriminate him, the name disclosure did not violate the Fifth Amendment right against self-incriminating - Note, this is only a requirement to provide a name, and it is based on a state statute requiring a citizen to do so.

Sixth Amendment

- If a suspect has been arraigned or indicted, he has a right to demand the presence of an attorney during a lineup, show-up or any "in court" identification. - The attorney is allowed to observe, that is all. - There is no Sixth Amendment right to an attorney for photo lineups

Sub-sequential Interrogations (2 or more interrogations)

- If the first confession was involuntary, all subsequent confession are inadmissible - If the first confession was voluntary but in violation of Miranda, any subsequent confession will be fine after the suspect is properly Mirandized. - The first voluntary confession in violation of Miranda will stay out, the subsequent confession will be allowed in - A Miranda warning given moments after obtaining an inadmissible confession does not fix anything; time must elapse before a new confession is "okay" - A second set of Miranda warnings are necessary only if there has been a long delay between questioning (several hours), or the suspect is otherwise unlikely to remember his rights - Ex: drunk the first time giving a confession (come back later to give another Miranda warning)

Inventory Searches

- Inventory searches consist of examining and making a list of people's personal property and containers held in government possession - Reasonableness depends on satisfying 2 elements: 1. Balancing interests - a search is reasonable if the governments need outweighs the individuals privacy rights and if it meets one of the following: a. To protect the owners stuff while in the government's possession b. To protect officers against lawsuit c. To protect officers, suspects and others from potential danger 2. Objective bias - routine procedures (not probable cause or reasonable suspicion) are required a. Following routine, department approved, written procedures takes the place of probable cause and reasonable suspicion in inventory searches b. This still allows plenty of discretion on the part of the officers

Examples of Protecting Fifth Amendment Rights During Identification Procedures

- Jason was put in a lineup after his arrest for theft. He was very uncooperative and told the officers, "I know my Fifth Amendment rights. I'm not doing that!" - The officers were correct when they refused to comply with Jason's demands because he does not have a Fifth Amendment right to refuse to participate in a lineup.

Examples of How the Fifth Amendment Is Invoked

- Kevin was stopped approximately 100 yards from a building where the burglar alarm had just gone off. The police legally stopped him based on reasonable suspicion but did not have probable cause to arrest him. They questioned him without giving the Miranda warnings. Kevin said, "Sorry, I refuse to answer any more questions. Fifth Amendment." The police stopped the questioning. - When a person is stopped on reasonable suspicion, the police are not required to give the person the Miranda warnings.

Examples of Situations in Which Police Have Authority to Make Arrest Without an Arrest Warrant (Based on Traditional Rules)

- Man flags down police officer and states that a man just pulled a knife on him and stole his wallet. - Officer responds to a domestic disturbance call. As the officer walks past the front window, she observes a man hit a woman in the fac

Examples of Situations Not Covered by Fifth Amendment

- Mary was charged with murder because she hired Harry, a "hit man," who killed her wealthy husband. She convinced the trial jury of her innocence and was acquitted. - If called to testify at Harry's trial, Mary cannot invoke the Fifth Amendment because double jeopardy will protect her from being prosecuted for the mur- der twice.

examples of illegal car stops

- Officer observed a car being driven 5 miles below the speed limit on a street in an industrial area on a weekend. The car was stopped and immediately the entire vehicle was searched. - The facts stated do not indicate that there was a valid reason for the car stop. If there had been a legal stop and reasonable suspicion that there were weapons in the vehicle, the search should have been limited to the passenger compartment.

examples of legal car stops

- Officer observed a car go through an intersection without stopping for a red traffic light. - Officer observed a car go slowly down a residential street, stopping at every garage that had the door open, but not at other houses.

Cars

- Officers cannot randomly stop a car, but they only need evidence of a traffic violation During a legal stop: - The officer may order the driver out of the car (Pennsylvania v Mimms) - And passenger out of the car (Maryland v Wilson) - Passengers may be searched if there is reasonable suspicion that they are armed - If an arrest is made, a complete search of the passenger compartment of the vehicle is authorized with limitations (more next week) - Passengers may be searched if there are objectively reasonable and articulable facts to suggest they are armed or potentially dangerous (Michigan v Long)

The right to an attorney (MW)

- Officers may not question a defendant once he or she has requested an attorney - Occurs after the arrest and before formal charges - If the person asks for an attorney, it must be unequivocal - If the person asks "Should I have an attorney?" the cops aren't allowed to say no, they have to say something along the lines of "I can't answer that question for you. Are you asking for an attorney?" They can ask in ways that would dissuade the witness into asking for an attorney. - Clearly state that you will not talk unless there is an attorney present - That changes if the defendant instigated the communication after he or she requested an attorney

Examples of Facts that did not make Probable Cause

- Police arrive at the scene and discover the front door is open. They cautiously walk through the house but see nothing amiss. - The police officers have no idea why the front door is open. The owner may have left it open or someone else may have opened it. - There is no indication that a crime has been committed. - The officers do not have probable cause to make an arrest.

Examples of Probable Cause to make an Arrest

- Police arrive at the scene and observe the suspect hitting another person with a baseball bat. - Woman calls 911. When the police arrive at her house, they observe that the woman has red marks on her face indicating she has recently been hit. The woman tells the officers that her husband hit her with his open hand.

Examples of Actions that are Seizures

- Police stop a man carrying an object that appears to be a gun. They immediately seize the object. An arrest can be made as soon as it is determined that the man does not have a permit to carry the gun. - When the suspect is booked into the city jail, officers remove all personal belongings in the suspect's possession. - Officers go to a bank and obtain a copy of the suspect's checking account records. A court order is needed in order to make this a legal seizure.

Consent Searches (Cont.)

- Probable cause to search CAN NEVER be created by your refusal to consent - Consent is not voluntary if the police say they have a warrant - Consent is probably not voluntarily if the police officers have drawn their weapons

The Exclusionary Rule

- Remedy of unreasonable searches and seizures = not admit the evidence in court - The United States is the only country in the world that excludes good evidence if it is collected using bad methods - The exclusionary rule is not explicitly found in the Constitution

Examples of the right to have evidence suppressed

- Sam was illegally stopped by the police and his car was searched. - Mary, who is a suspect in a theft investigation, is spending the weekend with her brother Ned. Police enter Ned's apartment without a search warrant and find the items that Mary stole.

Separate Sovereigns

- Same actions that cross state lines and/or federal laws = can be tried in each state or separately in federal court - Double jeopardy has not attached - Immunity can come in here (carries over through federal and state courts) - On the exam, do not assume that separate sovereigns play a factor unless he clearly states that the defendant has federal charges pending and the question is about them being in state court.

Vehicle Searches

- Searches based on probable cause do not require a warrant because: 1. Vehicles are mobile and can leave the area 2. There is a reduced expectation of privacy in vehicles Persons and containers within a vehicle are subject to a search - Wyoming v Houghton (1999) when officers have probable cause to search a car, they may search any person or container in which the object of the search may be hidden - Container rule - if police have probable cause to believe there is evidence of crime in a container they may search it - Officers may conduct a search of a vehicle without a warrant if there is a probable cause to believe that the vehicle contains something of evidentiary value that can legally be seized - The search is restricted to areas where there is probable cause to believe the items are located. This may be done at the scene or later at a more convenient location

Due Process (Show Ups)

- Show ups are different because only one suspect is shown - Courts rely on 6 factors to determine fundamental fairness 1. Opportunity to view the crime a. If the person says she heard the crime and saw someone running that is less credible than saying you clearly saw the person who did it 2. The degree of attention the witness paid to the suspect a. Big difference between someone who glanced at the suspect rather than someone who was looking at the suspect attentively. 3. Level of certainty of the witness a. If the witness is wishy washy about what they saw it will be more difficult to justify a show up If the witness is certain of who they saw then it will be permitted 4. Accuracy of the witnesses prior description of the suspect 5.Prior inaccurate identification made by the witness 6. Length of time between showup and crime a. Shorter amount of time between crime and showup the better

examples of legal fingerprinting

- Suspect who is under arrest is taken to the police station and fingerprinted. - Suspect who is stopped because he matched the description of a person who was seen leaving a nearby house that was burglarized 10 minutes earlier is fingerprinted at the location where he was detained.

Scope of Exclusionary Rule

- The scope is limited because of the belief that the social costs of keeping good evidence out of court are too high - The rule is limited to the prosecution's case-in-chief at trial - Developed in series of USSC cases: Weeks v US (1914) - Applied to federal courts - Applied only to private papers and effects

Consent Searches

- These are the most common form of searches - A consent search literally means that the person being searched has waived his or her constitutional right against unreasonable searches and seizures - It is the easiest way possible for police officers to collect evidence - Consent searches are reasonable only if they are voluntary - Voluntariness is proven by the "totality of the circumstances"

Withdrawing Consent

- USSC has never said a suspect can withdraw consent - Every lower federal court and state court has said one can withdraw consent - Unequivocal acts - Statements of withdraw

Third Party Consent Searches

- Where one person gives consent to search on behalf of another person - Relationships (spouse-spouse, parent-child, roommate-roommate) do not automatically give one person authority to consent for the other person - There is an objective and a subjective rule that courts follow: - Actual Authority third-party consent is subjective - Apparent authority third-party consent is objective (minimum) - Illinois vs. Rodriguez (1990) battered girlfriend searches are valid if, at the time of the search, the authorities "reasonably believe" the third party possesses common authority over the premises.

Totality of Circumstances - the court will factor in:

- Whether the suspect knew she could refuse consent - Whether the suspect was a sufficient age and maturity to make an independent decision - Whether the suspect had experience working with the criminal justice system - Whether the suspect cooperated with officers - How long was the suspect detained? - What was the suspect's attitude during the search? - The nature of the questioning regarding the search - Whether the police were coercive

Standing

- With regard to searches and seizures, standing is the legal right to ask the court to suppress illegally obtained evidence - The USSC defines Standing in terms of a reasonable expectation of privacy -- Ergo, if your bags are searched at an airport, and you know they could be searched before entering, then you do not have a reasonable expectation of privacy, do not have standing, and cannot ask the court to suppress anything found in them

In Court

- Witnesses will be asked to tell the jury about the identification process - Defense attorneys will focus on any misidentification or other issues. Defense attorneys are permitted to call experts to testify about the problems with eyewitness identifications.

Examples of Situations in Which Police Do Not Have Authority to Make Arrest Without an Arrest Warrant (Based on Traditional Rules)

- Woman flags down a police car and tells the officer that her boyfriend just slapped her. - Drunken man flags down a police car and tells the officer that someone stole his wallet.

Police arrest Donnie and Marie for selling pirated copies of Thriller on the internet. Donnie was tried and acquitted last month. The prosecutor has appealed the evidentiary decision the trial judge made. The prosecutor has subpoenaed Donnie to testify at Marie's trial. When Donnie takes the stand, he claims the Fifth Amendment privilege against self-incrimination and refuses to answer questions. Can the judge find Donnie in contempt of court for refusing to testify?

- Yes, an acquittal is not reversible so Donnie is in no danger. He can be held in contempt because he has refused to testify. - On the rare event that there is fraud alleged against the council. On the exam, unless he specifically says there has been fraud alleged against the council, do not assume that it might be possible.

Search

- an examination of a person his or her house, personal property, or other locations, when conducted by a law enforcement officer for the purpose of finding evidence of a crime - It is only a search if the act involves looking for something that would otherwise not be seen

Jury tampering & allegations of jury fraud by the defense

- can retry - Even if a person is acquitted and allegations are raised that there was some type of jury tampering, or even if the person was convicted and there was some type of issue that called for a retrial anyway by the state (this is talking about the defense team infiltrating the jury somehow and swayed the verdict) even if the person was acquitted, the court will not allow the fraud so the defendant will be retried again - Does not happen very often - Double jeopardy does not attach, which means that if they are asked to testify on another case they can refuse (if they can be retried again, they can't be compelled to provide evidence against themselves) - A criminal conviction does not stop a civil case

Seizure

- the act of taking possession of a person or property - A "seizure" (of property) occurs when there is some meaningful interference with an individual's possessory interests in that property. (US v Jacobsen, 466 U.S. 109 (1980))

Unclear why a witness is pleading the Fifth?

- the judge may ask the witness outside the hearing of the jury to explain the basis for the privilege - You can only plead the Fifth if the information you withhold could result in criminal charges. It does not matter if what you testify about could result in civil charges, those are not covered by the Fifth Amendment. If the Judge determines that there is no basis, he can order that person to testify and hold them in contempt. If the Judge agrees that there is a basis, then the Fifth Amendment privilege will be upheld. - Only the defendant may refuse to take the witness stand. Witnesses must take the stand, but may then invoke the Fifth. - The defendant usually only takes the stand if they elect to. The prosecutor can not force them on the stand. Witnesses do have to take the stand if they are there. It is at that point that they can assert their Fifth Amendment privilege.

Original Justifications for the Exclusionary Rule

1. Constitutional Right - Our Fourth, Fifth, Sixth and Fourteenth Amendment rights wouldn't mean anything without the exception 2. Judicial Integrity - the courts shouldn't participate in unconstitutional behavior by approving it 3. Deterrence - Prevent unconstitutional conduct by the police - Rightly, or wrongly, in Arizona v Evans (1995). A majority of the USSC adopted deterrence as the "sole" justification for the Exclusionary Rule

Florida Police Force Table (2013)

1. No resistance - Officer presence 2. Verbal noncompliance - Verbal commands 3. Passive Resistance - hands-on-tactics, chemical spray 4. Active Resistance - Intermediate weapons: baton, Taser, strikes, non-deadly force 5. Aggressive Resistance - Intermediate weapons, intensified techniques, non-deadly force 6. Deadly-force resistance - deadly force

example of legal interrogation

A man is stopped based on reasonable suspicion that he is selling drugs and questioned for 10 minutes. The police officer did not give the man the Miranda warnings.

Examples of Protecting Fourth Amendment Rights During Identification Procedures

A police officer responded to a "robbery now" call. The suspect fled the scene as the police car approached. Melody, the victim, gave the officers a good description of the robber. Another officer patrolling approximately two blocks away saw a man running down the street who matched the description broadcast by the officer at the scene. The man was detained while the victim was transported to the scene. As soon as Melody saw the suspect she screamed, "That's him!"

Examples of Actions that are not Searches

A police officer was walking through the park and observed a young man smoking a cigarette. The air was full of the smell of marijuana smoke. - The park was a public place; therefore, what the officer observed while walking through the park was not a search. - Picking up the man's backpack and looking inside for marijuana would be a search. - Searching the backpack would be considered unreasonable because it was an invasion of the man's privacy. - If the smell of marijuana was so strong that it provided probable cause for an arrest, the officer could legally search the backpack immediately after the arrest if it was within the suspect's reach at the time of the arrest.

example of illegal interrogation

A woman is stopped based on reasonable suspicion that she used a stolen credit card, taken to the police station, and questioned for 10 minutes.

Examples of Vehicle Searches Done Incident to Arrest

An officer arrested the passenger in a car for possession of meth. Prior to taking the person to jail, the officer conducted a very careful search of the entire passenger compartment for evidence related to the meth.

Examples of Situations That Would Not Be Considered Valid Consent Searches

An officer went to a suspect's home when he knew the suspect was at work. Holding up a folded piece of paper, the officer told the elderly gentleman who answered the door, "Search warrant. May I come in?"

Double Jeopardy (Jury Trial)

Attaches during a jury trial when the jury is sworn (see tampering) Defendant convicted - can't retry (see appeals) - Can not be retried in that court, does not apply if the defendant faces charges in federal court Defendant acquitted - can't retry - If the defendant goes through trial and is found not guilty, he cannot be retried, unless found guilty or not guilty on the fact that there was tampering or fraud coming above the jury Dismissing with prejudice - can't retry - The case was dismissed without the possibility of a new trial (double jeopardy attaches and the person cannot be retried) Dismissing without prejudice - can retry - The judge or appellate court is dismissing the case but gives the prosecutor the option to try it again, by its very nature there was no conclusion in the case, so the person can be retried.

Appeals

Case overturned and remanded for new trial = can retry - Means the appeals court is saying there is something wrong with the proceedings below (typically with a conviction) - Person can stand trial again and cannot be compelled to testify against themselves because double jeopardy hasn't attached

Miranda Warnings - When?

Custodial interrogations do not include: - Traffic stops where citations are issued - Will be stopped, but will be free to leave (not custodial) Field interviews based on reasonable suspicion - keeping you there to dissuade their suspicion about your criminal activity (reasonable articulable facts, that criminal activity is afoot). Miranda is not required yet because it is not custodial yet (they don't have the probable cause to arrest you) - Interrogations at the police station but the witness in mind is under arrest (you voluntarily go to the police station) KICKER: Has the defendant been arrested? OR (importantly) Does the cop have enough probable cause to make an arrest? (they are going to arrest you but they haven't put the cuffs on yet, they want you to continue talking) IMPORTANT: If the cop has probable cause to make an arrest, Miranda IS required if they continue to gather information. Up to the judge to determine, based on testimony from the cop and (maybe) the defendant when probable cause existed. - Custody is determined by an objective test = was the witness's liberty restricted to such a degree that an ordinary person would believe he or she did not have the right to leave? - Miranda warnings are not required when an inmate is questioned by an undercover cop. Why? That is not custodial. (he does not know he is a cop)

Reasonable Forces

Deadly force - is inherently unreasonable except in situations where a life (officer or bystander) is in danger Only enough force as is necessary in the situation

Reasonable Suspicion

Evidence that justifies an officer in stopping and questioning an individual believed to be involved in criminal activity

Self-Incrimination (Immunity)

Federal immunity often carries immunity from the state or vice versa The defense attorney will demand this before he allows the client to speak Testifying about crimes not covered by immunity can lead to prosecution - Ex; if someone is testifying about a bank robbery (which was agreed upon by the prosecutors that it was under immunity) and they began to mention a homicide or some other crime, the information from that testimony can lead to charges Refusal to testify after being granted immunity is grounds for contempt of court. Witnesses can be held in jail until they agree to testify. - If the prosecutor presents immunity to the judge and the witness continues to refuse to talk, the judge can hold the witness (in jail) until they are willing to talk (could be held for months)

Suspect illegally arrested? (MW)

Fruit of the Poison Tree Doctrine applies, and Miranda does not cure it - illegally obtained evidence is not admissible

Exceptions to the Exclusionary Rule

Good faith exception - If an officer is acting in good faith (not illegal) it is allowed in - Deterrence does not work here that is why it works Attenuation - There is a taint in the evidence (something bad happened) but enough time and distance goes by before new evidence is collected that they decided to keep the evidence in Inevitable Discovery - The police use coercion or tactics that deem unconstitutional to lead the suspect to giving up information, however it stays in because the prosecution can argue that they would have found the evidence even without the confession Independent Source Public Safety - In cases of public safety it is ok to ask questions because of the safety of other people There are procedural exceptions - Harmless error Even if a judge makes a mistake and lets tainted evidence in the court, if the evidence by itself is enough to change the outcome of the case, its ok, the conviction will stand

The Exclusionary Rule does not apply to:

Grand jury Impeachment Civil cases Parole revocation hearings Searches by private persons

Sixth Amendment - Messiah Rule

If a defendant has been formally charged (indicted / arraigned) for a specific crime, the state is forbidden to interrogate the defendant unless his attorney is present. Even if the defendant signs a Miranda waiver, the testimony will be thrown out unless the defendant clearly, knowingly and voluntarily waives his right to counsel. - Sixth Amendment attaches That also means that any attempt to gain information from the defendant, whether via confidential informant or an undercover cop, is illegal without an attorney present. - Massiah v. US - when a defendant is questioned after formal charges have been filed, the admissibility of his answers turn on: - Whether he was aware of his rights to have an attorney present - Was he aware of the consequences of answering the questions without an attorney. - Even if a waiver is given, the moment the defendant requests an attorney, the questioning must stop and could not resume until the attorney is present.

Plain View Doctrine

It is not an unreasonable search for officers who are legally on the premises to observe items left where they can be seen. Probable cause is needed to seize the objects observed in plain view.

Identification

Lineup - the victim or an eyewitness is asked to identify a suspect from a group of people Showup - the victim or eyewitness is shown one suspect and makes an identification Photo Lineup - the victim or eyewitness is asked to make an identification from a group of pictures (most common)

What does it mean to waive your rights voluntarily?

No coercion can be used to compel the defendant to talk (if on the exam, it will clearly state that coercion was used) No interference can be made at trial that because the defendant did not testify she must be guilty - Fifth Amendment would be pointless if this was allowed If the defendant makes a timely request, the Judge must instruct members that they cannot draw such a conclusion (US v Robinson)

Ben is arrested on probable cause for grand theft auto. A witness to one of the thefts is brought in to identify the thief. Ben is brought into a lineup with four similar looking men. The witness does not identify anyone. Ben exits the room and is brought in with five more men. Is this okay?

No, it is not. Multiple lineups are suggestive and violate due process.

Police arrest Donnie and Marie for selling pirated copies of Thriller on the internet. Donnie was tried and acquitted last month. The prosecutor has appealed claiming fraudulent jury tampering on behalf of the defense team. The prosecutor has subpoenaed Donnie to testify at Marie's trial. When Donnie takes the stand, he claims a Fifth Amendment privilege against self-incrimination and refuses to answer questions. Can the judge find Donnie in contempt of court for refusing to testify?

No, jury fraud is unique. If an appeals court finds that the defendant tampered with the jury, he can order a new trial. Therefore, double jeopardy has not been triggered. He cannot be held in contempt.

Police arrest Mitzi and Bitzi for robbing the Red Oak gas station out on Route 9. Mitzi was tried last month, and her case resulted in a hung jury. The prosecutor has subpoenaed Mitzi to testify at Bitzti's trial. When Mitzi takes the stand, she claims a Fifth Amendment privilege against self-incrimination and refuses to answer questions. Can the judge find Mitzi in contempt of court for refusing to testify?

No. A hung jury doesn't trigger double jeopardy so Mitzi can be tried again. She can't be compelled to testify.

Lenny is arrested on probable cause that he held up a Piggly Wiggly. Three witnesses arrive at the station. The police force Leny into a lineup. The other men standing beside him are cops in street clothes. Does this violate Lenny's due process?

No. This is not a problem. If you are arrested or in custody for any reason, you can be forced into a lineup.

Examples of Being Legally on the Premises for Plain View Doctrine

Officers arrived at a house to serve an arrest warrant. They complied with "knock-and-announce" before entering. Three feet inside the front door they observed a stack of uncut sheets of counterfeit $20 bills.

Examples of Application of Open Fields Doctrine

Officers suspected that a farmer was growing marijuana in the portion of his field farthest from the road. They walked down the rural road, climbed a fence that had a "No Trespassing" sign, and went to the back of the field. They found approximately 100 healthy marijuana plants growing there.

Examples of Not Being Legally on the Premises for Plain View Doctrine

Officers suspected that the house at 301 S. First Street was being used to grow marijuana. They climbed a fence so they could look in the windows at the rear of the house.

Examples of Situations That Would Not Qualify for the Open Fields Doctrine

Officers were on private property when they found a large growth of marijuana plants. As they continued to investigate, they discovered a small cabin. Through the open curtains they saw equipment used to manicure marijuana and package it.

Fifth Amendment

One does not have Fifth Amendment right against self-incrimination to object to a lineup A legally arrested suspect/defendant can be: - Forced into a lineup - Forced to wear clothing the criminal wore - Forced to walk and make gestures - Forced to provide a voice exemplar

Fourth Amendment

Photo lineups - do not violate the Fourth Amendment Showup - requires consent or reasonable suspicion to perform in the field. Requires probable cause to arrest in order to transport to the station. Lineup - as most are done at a police station, requires probable cause to arrest or consent. - If the suspect is in custody for any reason, he can be put in a lineup.

9th Circuit (2009)

Police can only use a taser in situations where the suspect represents a danger to himself, the officer, or others.

Examples of Actions that are Searches

Police officer orders the suspect to empty his pockets and carefully examines each item that is produced. - If the officer did this before arresting the suspect, it is unreasonable. - If the officer arrested the suspect before ordering the pockets emptied, the officer's actions would be a reasonable search. A police officer goes to a farm and finds a field of marijuana plants. - If the officer searches close to the farmhouse, his actions are unreasonable. - If the officer searches open fields that are not near a dwelling, the actions are reasonable.

Miranda Warnings - Waivers

Recall, we said that waivers must be made intelligently, voluntarily and knowingly. - Intelligently = the suspect has the basic intelligence to understand his or her rights Problems arise : Mental defect or disability Age Debilitating Intoxication - Knowing = the suspect was properly advised of her rights (Done with paper form, the person is asked to read it (usually it is video taped these days) and then sign it) - Voluntary = Coercion offends due process False Promises of leniency - Bad - Cannot promise any form of leniency but they can say they can talk to the prosecutor on the person's behalf and see what they can do, however the officers have no intent to talk to the prosecutor Deprivation of Food or Water - Bad Protection if and only if a suspect confesses - Bad - Ex: (Law and Order) Cops will say they will "put them in jail and spread the word around that the person is a pedofile and threaten them what's gonna happen to them when they go into jail" to get them to confess. TV drama bullshit, you cannot do that. May happen in real life but very rare. (Coercion) Physical force (or threats of) - Really Bad Note: the USSC has held that it is okay for officers to tell Lies and Half-truths in some cases.

Due Process (Fourth and Fourteenth Amendments)

Requires fundamental fairness A lineups and photo lineups must not be unduly suggestive or produce a substantial likelihood of misidentification: - 5 to 7 individuals with similar characteristics - Anything that makes the suspect stand out is prohibited - Suspects should not be shown in multiple lineups - Police should avoid making ANY suggestions/coaching

The Exclusionary Rule (Court Cases)

Silverthorne Lumber v US (1920) - Expanded the rule to cover evidence indirectly based on illegal government action (Fruit of the poisonous tree) Agnello v US (1925) - Expanded the rule to cover contraband and searches incident to arrest Wolf v Colorado (1949) - The USSC applied the Fourth Amendment to the States, but did not include the exclusionary rule - States were told to create remedies for themselves Elkins v US (1961) - Held the silver platter doctrine was unconstitutional Mapp v Ohio (1961) - Applied the exclusionary rule to the States Wong Sun v US (1983) - USSC expanded "fruit of poisonous tree" to cover testimonial evidence

examples of illegal fingerprinting

Suspect detained on reasonable suspicion is taken to the police station and fingerprinted

Sara is arrested on suspicion of stabbing a man in Wilson Park. Sara is put in a lineup with five other women. The witness is having trouble identifying the perpetrator, so an officer says, "Look closely at each: is the suspect in the lineup?" Sara says. "I'm not sure." The officer says, "Take a closer look at number three."

That violates due process.

Non-testimonial Compulsion

The Fifth Amendment does not apply to: Identification evidence, e.g., fingerprints, line ups DNA - Not actually testifying, testimonial privilege Bodily fluid Voice exemplars - Can not force you to testify about what happened, but you can be forced to give voice exemplars to be used to help identify - For identification purposes they can force you to talk, for evidence purposes they cant (lead to violation of fifth amendment) Handwriting exemplars Sobriety tests, e.g., lack of muscle control and slurred speech

Transaction Immunity

The defendant cannot be prosecuted for the specified crimes, whether from some he said or from independent sources - If you are a defense attorney, this the type of immunity that they would typically try to go for (this is because regardless of any type of outside evidence, if the defendant agrees to testify, he will not be prosecuted, or if the witness agrees to testify they will not be prosecuted, period.) - This one is much more difficult to get and typically involves cases where the person has really important information and they are going for a bigger fish

Self-Incrimination

The fifth amendment forbids requiring a person to make statements that can be used against him or her in a criminal proceeding - Only in situations where the individual can be tried in a criminal trial Does Not apply to situations where the statute of limitations has tolled - no charges can be filed - Once the statute of limitations has run out, you can not be tried in a criminal trial, therefore the fifth amendment regarding self-incrimination is not granted Does Not apply when the person has been given immunity from prosecution - If the prosecution agrees to give a witness or defendant immunity, then you can not claim fifth amendment privilege in the courtroom, you can be compelled to testify (you cannot be compelled to take the stand if you are a defendant, but you can if you are a witness) Does Not apply if the witness has already been prosecuted and falls under double jeopardy protection

Probable Cause

To Arrest - to reasonable belief that a person has committed or is committing a crime To Search - the reasonable belief that a place contains specific items connected with a crime

impeachment (MW)

Voluntary statements are admissible, involuntary are not

Searches Incident to Arrest

When a person is arrested, the Constitution permits the police to search the "grabbable" area around the defendant and to seize evidence and weapon: A. to prevent the destruction of evidence B. To protect the safety of officers, the suspect, and people in proximity

The police arrest Billy based on sufficient probable cause. They take Billy to the station and read him his Miranda warnings. Billy asks, "Hey, now, do you think I need an attorney?" The police don't answer that question. Instead they ask him if he'd consent to a statement. Billy does, and confesses. At trial his attorney objects to the confession and demands that it be excluded. You are the judge -- how do you rule?

You allow the evidence to come in. The US Supreme Court says that Billy has NOT made an unequivocal request for a lawyer.

Reasonable Person

an objective standard, that places the finder of fact in the actors shoes (i.e. reasonable cop)

Use Immunity

that nothing the defendant says can be used against him. He can still be prosecuted with independently collected evidence

Reasonable Appearances

we access the facts as they reasonably appeared to the actor

Examples of Violating Fourth Amendment Rights During Identification Procedures

woman arrived home and found a man ransacking her house. The man ran out the back door when she entered the house. When the police arrived, she gave them a good description of the burglar. A patrol officer stopped a man carrying a bulging pillowcase a half mile from the burglary. The man, who was sweating and appeared to be out of breath, was taken to the police station and placed in a lineup with five other men. The officer had reasonable suspicion to stop the man, but probable cause is required to take the man to the station (unless he consents). Therefore, being in a lineup at the station violated the man's Fourth Amendment rights.