CRIM 117

Cruel trilemma

- Refers to the situation faced by a suspect during interrogation, not liked by courts - If they talk, they incriminate themselves - If they remain silent, they look guilty - If they lie, they face perjury charges

What dangers can confessions present?

1- Abuse. The police may be tempted to employ physical abuse and psychological coercion to extract confessions. Abusive conduct is encouraged by the practice of incommunicado police interrogation—the carrying out of interrogations in police stations without the presence of defense lawyers or judicial supervision. 2- Fair procedures. A reliance on pretrial confessions to establish a suspect's guilt is contrary to the principle that guilt is to be established beyond a reasonable doubt through the adversarial process in a courtroom. 3- Reliability. There is the danger that a conviction will be based on a false confession. 4- Inequality. Uneducated and disadvantaged suspects and individuals lacking self-confidence may be particularly vulnerable to manipulation and trickery. On the other hand, the wealthy and educated are more likely to possess the self-confidence and understanding to refuse to talk to the police and are more likely to be able to afford a lawyer.

Free Will and Rational Choice

1- Confessions violate due process if they are the product of drugs administered by the police 2- Or of a suspect's psychological disabilities 3- And if they do not result from free will or rational choice

Inventories purposes

1- False claims. Deter false claims of theft by the police Property. 2- Protect property against theft by the police 3- Safety. Prevent arrestees from injuring themselves or others using belts, knives, firearms, or other instrumentalities that are smuggled into the jail lockup 4- Identification. Confirm or ascertain an individual's identity

What are the three Constitutional Limitation on Police interrogation?

1- Fourteenth Amendment Due Process Clause: The Supreme Court has ruled that an involuntary confession violates an individual's LIBERTY to make a voluntary choice to confess. 2- The Fifth Amendment Self-Incrimination Clause: The Court has found that custody by police is an inherently coercive environment; In Miranda, the Court concluded that the inherently coercive environment of incommunicado police interrogation overwhelmed an individual's ability to their right against self-incrimination 3-The Sixth Amendment right to Counsel: Once the Government has taken the formal steps to prosecute an individual, he/she possesses a 6th Amendment right to counsel.

What was the Supreme Court reason for Robinson and gustafson establishing a Bright-Line rule?

1- Judicial review. The courts do not have the time and resources to review the reasonableness of every search incident to an arrest conducted by the police that may be challenged by a defendant. Each situation involves a complicated factual determination. 2- Safety. Searches incident to an arrest protects the safety of officers. A frisk does not fully safeguard the police. 3- Evidence. Searches incident to an arrest may result in the seizure of evidence of other crimes. 4- Privacy. A search is a modest intrusion on an individual who, once having been subjected to an arrest, already has lost a degree of personal privacy.

What are the two justifications for the warrantless search of motor vehicles?

1- Mobility. The motor vehicle is "obviously readily mobile by the turn of a switch key, if [it is] not actually [already] moving." Regulation. 2-There is a reduced expectation of privacy in a motor vehicle because the vehicle is subject to a range of "police regulation inapplicable to a fixed dwelling." This includes a license to drive, vehicle registration, and safety and environmental regulations. The Supreme Court in other cases has held that motor vehicles have a reduced expectation of privacy based on the facts that vehicles travel on public highways, the exterior and interior of autos are easily observable by a plain view search, and individuals rarely store personal belongings in their cars.

What are the two reasons in Richard v. Wisconsin, the Court allowed police with no knocking and announce?

1- Overly broad. There is no necessity to disregard the knock and announce requirement in every instance of a search for narcotics. For example, the individuals involved in the drug trade may not be in the home at the time that the police serve the warrant. 2- Other crimes. The reasons for a "no-knock" entry and search for drug crimes may be applied to a number of other offenses, such as bank robbery. Creating a blanket exception will lead to additional exceptions and to the eventual disappearance of the knock and announce rule.

What are the three situations where knock and announce is not required?

1- Physical violence. There is a threat of physical violence. Prison escape. 2- A prisoner escapes and flees into the home. 3- Destruction of evidence. There is reason to believe that evidence will be destroyed.

Other Warrantless Searches

1- Plain view. Most law school texts categorize plain view as a warrantless search. An officer who is legally situated may seize an object that he or she has probable cause to believe constitutes evidence of criminal behavior (Arizona v. Hicks, 480 U.S. 321 [1987]) (Chapter 3). 2- Frisks. The police may conduct a frisk of an individual subjected to a reasonable suspicion stop who fails to dispel an officer's reasonable fear that the individual is armed and presently dangerous (Terry v. Ohio, 392 U.S. 1 [1968]) (Chapter 4). 3- Exigent circumstances. The police may enter a dwelling without a warrant to prevent the destruction of evidence or in hot pursuit of a fleeing suspect or in response to a threat to public safety. The scope of a warrantless exigent circumstances search is defined by the object of the search. A search that goes beyond this limited purpose requires a search warrant. The U.S. Supreme Court also has upheld the warrantless seizure of evidence from an individual's person or immediate possession when there is an imminent threat that it may be destroyed.

factors of false confessions

1- Police bias. The police were under intense pressure to solve the crime and quickly concluded that the suspects must be guilty and focused on obtaining confessions. 2- Age and intelligence. Several of the young suspects may have been tricked into confessing. Two had IQs below 90 and may have failed to understand the meaning of a confession. 3- Misleading remarks and false evidence. Some of the young men claimed that they had been told that they would be permitted to go home if they confessed. One suspect reportedly was told that his fingerprints had been found at the crime scene, another was informed that the others had implicated him, and others were told that hairs linked one of the young men to the crime. 4- Lengthy interrogations. The young men confessed after being interrogated for more than twenty-eight hours. How frequent are false co

What purposes serve for searches incident to an arrest?

1- Safety. To seize weapons that may harm the officer 2- Resist arrest. To seize weapons that may be used to resist arrest or to flee 3- Evidence. To prevent the destruction or concealment of evidence

The aspects of Inventory

1- Uniformity. An inventory search must be a standardized or uniform procedure. This means that there are fixed guidelines, and all individuals and objects are treated alike. These guidelines establish matters such as whether suitcases are to be opened and the contents inventoried or whether suitcases are to be sealed rather than opened. The police are to follow a routine procedure in every arrest situation. In other words, the "minister's picnic basket and grandma's knitting bag are opened and inventoried right along with the biker's toolbox and the gypsy's satchel" (State v. Shamblin, 763 P.2d 425, 428 [Utah Ct. App. 1988]). 2- Probable cause. There is no requirement that the police have probable cause in order to inventory an object or to open and inventory the contents of a container. 3- Reasonable procedures. The Supreme Court will not second-guess the inventory procedure adopted by a police department as long as the procedure is reasonably designed to protect the police against false allegations of theft, ensure safety, and protect a detainee's property. 4- Criminal investigation. An inventory search is unlawful and invalid where it is intended to investigate a crime rather than to inventory an individual's possessions. The U.S. Supreme Court has approved inventory searches in three separate cases. 1- Shoulder bag. In Illinois v. Lafayette, the Court upheld the seizure of amphetamines found in Lafayette's shoulder bag during an inventory at the police station (Illinois v. Lafayette, 462 U.S. 640 [1983]). 2- Automobile. In South Dakota v. Opperman, the Court affirmed the legality of the warrantless inventory of the contents of Opperman's automobile, which had been towed to the police impound lot (South Dakota v. Opperman, 428 U.S. 364 [1976]). 3- Containers. Lee Bertine was arrested for driving while under the influence of alcohol and taken into custody. In Colorado v. Bertine, the police were held to have lawfully inventoried the contents of his backpack, which was found to contain narcotics, cocaine paraphernalia, and cash (Colorado v. Bertine, 479 U.S. 367 [1987]).

What are the three primary justifications for the knock and announce rule?

1- Violence. Knock and announce protects against individuals mistakenly believing that their home is being burglarized and acting in self-defense against the "intruders." 2- Privacy. The occupants of the home are able to prepare for the entry of the police and avoid embarrassment. 3- Destruction of property. The police are voluntarily admitted into the home and are not forced to knock down the door and destroy property.

Types of confessors

1- Voluntary false confessors. Suspects provide false confessions out of a desire for publicity or because they feel guilty about a past crime or are mentally challenged. 2- Compliant false confessors. Suspects confess in order to obtain a benefit such as the avoidance of abuse or mistreatment or to receive favorable consideration at sentencing. This might range from a lighter sentence to imprisonment in an institution nearby to an offender's family. 3- Internalized false confessors. Suspects accept the police version of the facts or fail a lie detector test and come to believe that they actually committed the crime.

Correctional Institutions

1- prisoners "are not beyond the reach of the Constitution" and retain those rights that are not "fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration" 2- a right to privacy is "fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order" 3- the U.S. Supreme Court approved visual cavity inspections in those instances in which a pretrial detainee or inmate returned to his or her cell block following a contact visit with an individual from outside the institution 4-these visual cavity searches are reasonable because the need to deter the smuggling of weapons, drugs, and other prohibited items outweighed the intrusion into an individual's privacy interests

Probation and Parole search

1- probation officers can search the home of a probationer if there are "reasonable grounds" to believe that contraband or any other item that a probationer is prohibited from possessing is present 2- a probationer remains in legal custody of the state and typically is required to report to a probation officer and satisfy the officer that he or she is satisfying various conditions 3-probationers and parolees enjoy only a "conditional liberty properly dependent on observance of special [probation] restrictions"

"Special-needs"

1- searches are not necessarily conducted by a police officer. They may involve individuals ranging from airport screeners and public-school teachers to probation officers. 2-searches generally are concerned with enforcing regulations that protect the safety and welfare of individuals and of the public rather than with investigating the criminal conduct of a specific individual or group of individuals. 3- searches do not require a warrant or probable cause. They typically are based on reasonable suspicion and, in some instances, may be carried out without any articulable basis whatsoever.

Offensive Police Methods

1-Confessions in violation of the Due Process Clause are the product of police tactics that are offensive to fundamental values o 2- E.g. the def. confessed after three police officers threatened that she would lose her children unless she cooperated and signed a confession.

Trustworthiness

1-Confessions that result from physical or psychological coercion run the risk that a def. confessed to avoid or halt abuse. 2- These statements are unreliable and likely to be false

Fundamental Fairness

1-The use of an involuntary confession against a def. is fundamentally unfair 2-and compromises the integrity of the courtroom

Lack of consent.

A consent must be "unequivocal and specific"

Warrants in School

A probable cause warrant requirement would interfere with the "swift and informal" disciplinary procedures that are required in a school.

Articulable suspicion

A program of testing without reasonable suspicion following an accident deters alcohol or drug abuse because employees are aware that the unpredictable nature of railroad accidents means that they may be tested and detected at any time that they are on the job.

Warrants

A warrant requirement for the search of railroad employees would be impractical because evidence of drug or alcohol use likely would disappear before authorities could obtain a warrant. Despite the absence of a warrant, individuals are protected against harassment by regulations that authorize only suspicionless testing under specific circumstances (622).

Experience in the criminal justice system

An individual who has experience in the criminal justice system is less likely to be tricked or coerced into a waiver.

Intrusiveness

Blood and breath tests are minimally intrusive, and employees working in dangerous occupations in the heavily regulated railroad industry possess a diminished expectation of privacy.

What type of searches are don at borders?

Brief and unintrusive routine searches at the U.S. border may be conducted without reasonable suspicion or probable cause. Nonroutine searches require reasonable suspicion.

The search must be undertaken "immediately before the arrest, at the same time as the arrest or immediately after the arrest" is called ----

Contemporaneous Requirement (Once an accused is under arrest and in custody, then a search made at another place without a warrant is simply not incident to an arrest.

Seizure of contraband.

Defendants in several cases have argued that their consent could not have been voluntary because the police found incriminating evidence in the course of the consent search. Courts, however, generally have held that the fact that the object of the search is well hidden may indicate that the individual consented because he or she did not expect that it would be discovered.

School drug testing and searches

Drug tests of certain students may be carried out in the schools without reasonable suspicion. Physical searches of students' purses and possessions require reasonable

Workplace drug testing

Employees who are on the job during a railroad accident or whose jobs involve dangers that pose a threat to the public may be required to submit to suspicionless drug testing.

Hopt v. Utah, 110 U.S. 574 [1884]

In 1884, the U.S. Supreme Court adopted the English rule and announced that as a matter of the law of evidence, confessions were inadmissible in federal courts if obtained by police tactics that were sufficiently coercive such that the assumption that "one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases

Bram v. United States, 168 U.S. 532 [1897]

In 1897, the Supreme Court, in Bram v. United States, held that the Fifth Amendment privilege against self-incrimination provides the same protections as the English common law and that the Fifth Amendment prohibits the use of involuntary confessions against defendants. The holding in Bram was applicable only to the federal government because it was based on the Fifth Amendment, which the Supreme Court did not declare to be applicable to the states until 1964 in Malloy v. Hogan

Apparent authority third-party consent

In this instance, police officers reasonably (but mistakenly) believe that a person has common authority.

express waiver:

In writing and signed

Miranda warning.

Individuals in custody who are read the Miranda warnings are informed that they are not required to submit to police interrogation, and in many cases when asked to consent to a search, they also are informed that any objects seized during a consent search may be used against them. An individual who receives a warning is less likely to have been coerced into a waiver.

False Confessions

Individuals isolated in interrogation rooms have been known to make false confessions, even in instances in which the police did not pressure or manipulate suspects and treated suspects in a balanced and respectful fashion.

Probationers and parolees

Individuals under the supervision of state authorities have a diminished expectation of privacy and generally may be searched based on reasonable suspicion.

Nonroutine border searches

Intrusive border searches that require reasonable suspicion.

Public Safety Exception to Miranda

Is recognized by courts. Police do not need to give Miranda Warnings in cases where public safety is endangered

incommunicado interrogation:

Law enforcement questioning of individuals in the isolation of a police station.

Consent to search form.

Many police departments provide individuals with a form to sign that indicates that they consent to the search. Did the defendant sign or refuse to sign the consent form? A refusal to sign a form is not considered controlling in those instances in which a defendant verbally agrees to a consent search. The fact that a defendant signed a form that clearly indicated that the defendant possessed the right to refuse consent is strong evidence that the consent was voluntary.

Can the government conduct a warrantless search of the content of a cell phone seized after an arrest when no exigent circumstances exist?

No, the government may not perform warrantless search when there is no exigent circumstances.

What are the most important things in search warrant?

Particularity Requirement: requirement that a warrant is specific in regard to the objects to be seized and the place to be searched. Affidavit & probable cause.

Prisoners

Prisoners lack an expectation of privacy in their cells, and their cells may be searched without reasonable suspicion. Inmates who have had contact with individuals from outside the institution may be reasonably subjected to body-cavity searches.

What is the idea of loco parentis?

School officials historically have been viewed as acting in loco parentis ("in the place of the parent"). This status as a substitute for absent parents provided schools with complete and unlimited authority over students.

Governmental interest in schools

Schools have a duty to protect and to educate children. Drug use is destructive to students, especially those engaged in athletics. Individuals engaged in athletic pursuits are particularly at risk of injury or serious health problems. The Vernonia School District also asserted that the drug problem had reached epidemic proportions among athletes, who generally serve as role models for other students.

Special needs searches

Searches that do not serve the normal needs of law enforcement, and promotes the safety and welfare of individuals and of the public in two step analysis: 1- to establish that the search is directed at a special need "beyond the special needs of law enforcement" 1- evaluate the reasonableness of the search.

border exception:

Seizures and/or searches at the U.S. border may be undertaken without articulable suspicion.

Student privacy

Students have a diminished expectation of privacy, and athletes have even less of an expectation of privacy than the average student. The Court pointed out that athletes are subjected to a regime of regulation that includes preseason physical examinations, maintenance of a minimum grade point average, and adherence to rules of dress, training, and practice.

Suspicionless drug testing

Teachers are not trained to make reasonable suspicion determinations of drug use. Parents also would resist basing testing on reasonable suspicion on the grounds that this singles out and embarrasses students and places them in a negative light.

Coercion

The Ninth Circuit Court of Appeals held that the officers' "manifestly improper behavior rendered defective the signed consent form"

Third-Party Consent and Co-occupants

The Supreme Court held that a "warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable based on consent given to the police by another resident."

The Scope of a Consent Search

The Supreme Court held that the standard for "measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?"

Threats to obtain a warrant

The court held that an "empty threat" to obtain a search warrant may result in a consent being held involuntary, because the suspect is made to falsely believe that he or she has no alternative.

Trickery

The court held that the police misrepresentation prevented the residents from making a fair assessment of whether to consent

Intrusiveness of drug tests

The drug tests are conducted in a relatively unintrusive fashion. The tests look only for drugs and do not examine whether an individual is epileptic, pregnant, or diabetic. The results are disclosed only to a limited number of school authorities and are not distributed to law enforcement.

Government interests.

The government has a strong interest in regulating the conduct of railroad employees involved in "safety-sensitive" activities in order to protect the railroad-traveling public.

False claims of a warrant

The prosecution never presented a warrant in court and justified the search on the grounds of consent. The claim of a warrant "announces, in effect that the occupant has no right to resist the search. The situation is instinct [sic] with coercion.... Where there is coercion there cannot be consent"

Reasonableness of search in schools

The reasonable suspicion standard, according to the Supreme Court, relieves school personnel of the burden of learning the "niceties of probable cause" and ensures that searches will be carried out in accordance with the "dictates of reason and common sense."

Withdrawal of Consent

The rule is that an individual can withdraw his or her consent or limit the scope of the consent search at any time. Keep in mind that a withdrawal of consent does not affect the items already seized by the police. As noted in United States v. Lattimore, "a consent to search is not irrevocable, and thus if a person effectively revokes ... consent prior to the time that the search is complete, the police may not thereafter search in reliance upon the earlier consent"

What is treated as border but is not a border?

This includes a border station close to the border, the intersection of two highways leading from the border, or the point of arrival of a nonstop flight from a foreign country to the United States.

Common authority third-party consent

This requires "mutual use of the property by persons having joint access or control for most purposes."

Four purposes of voluntariness test

Trustworthiness, Fundamental Fairness, Offensive Police Methods, and Free Will and Rational Choice.

closely regulated business:

Warrantless searches are allowed for any business that qualify. such as Junkyards, liquor stores, gun stores, mining businesses, racetracks, power plants, railroads etc...

Awareness of the right to refuse.

Whether an individual is informed of his or her right to refuse consent.

Custody

Whether the individual is in custody or physically restrained or handcuffed when he or she is requested to consent to a search. An individual who voluntarily turns himself or herself in to the police is more likely to have voluntarily cooperated with the police and to have freely consented to a search. A suspect who proposes on his or her own initiative that the police conduct a search also is less likely to have

Requests for consent.

Whether there are a number of requests for consent before the individual agrees to the consent. The more requests that are made, the less likely it is that there is voluntary consent.

Coercive police procedures.

Whether there is police psychological pressure or a police-dominated atmosphere that may coerce an individual into consenting to a search against his or her will.

Bright-line rule

a clear and unambiguous rule set by judicial precedent

mental disability

a condition that limits a person's ability to use his or her mind, and low IQ and predisposition to comply with requests from authority figures and the pressure took away his voluntariness.

Confession

a formal statement admitting that one is guilty of a crime. Juries give confessions great weight when determining guilt.

Consent searches

a search based on an individual's waiver of his or her Fourth Amendment rights. The consent must be voluntary and may not be the result of duress or coercion, express or implied.

Star Chamber Court

a special court established by the English king in the fifteenth century that was charged with prosecuting and punishing political and religious dissidents. This inquisitorial tribunal employed torture and abuse to extract confessions and was authorized to hand out any punishment short of death

modified probable cause:

administrative warrants can be based on "modified probable cause," any building or home that fits the description.

inventory:

an administrative procedure recording the possessions of an arrestee and the content of impounded automobiles.

Pretext arrest

an arrest that is motivated by the intent to investigate law violations for which no probable cause or even articulable suspicion exists

voluntariness test

an be traced to the English common law. Eighteenth-century English common law judges declared that confessions were inadmissible into evidence if they had been extracted through the threat or application of force, through a false promise not to prosecute, or through a promise of lenient treatment

Admission

an individual admits a fact that tends to establish guilt, such as his or her presence at the shooting scene. An admission, when combined with other facts, may lead to a criminal conviction.

Statements

an oral or written declaration to the police that may constitute an assertion of innocence.

Fourteenth Amendment due process voluntariness test:

confessions may not be obtained through psychological or physical coercion that overcomes the will of the individual to resist.

involuntary confessions:

confessions that result from coercion, drugs, or a mental disability rather than free will

Third-Party Consent

consent to a search provided by an individual with common authority who exercises mutual use of property and has joint access or control for most purposes.

police methods test:

due process test intended to regulate police interrogation techniques

automobile exception:

exception to requirement that police obtain a warrant before conducting a search; a warrant is not required for an automobile.

motor vehicle checkpoint:

fixed point at which motor vehicles are stopped without articulable suspicion.

administrative inspections:

government agencies conduct searches to determine whether businesses, factories, apartments, and homes are conforming to a broad range of regulations.

The area of immediate control commonly is referred to as ----

grab area or lunging area

Voluntariness

is to be determined by the totality of the circumstances.

Automobile checkpoints

may be briefly stopped at fixed checkpoints in the interests of highway safety.

Airport screening of passengers

passengers and their belongings and baggage may be searched without reasonable suspicion.

What probable cause justifies and best answers the search warrants?

probable cause to justify a search is best answered by a "neutral and detached magistrate" rather than by a police officer "engaged in the often competitive enterprise of ferreting out crime"

Knock and announce

refers to a requirement that police knock and announce their presence when serving a search warrant

knock and talk searches:

refers to a requirement that police knock and announce their presence when serving a search warrant.

third degree:

the use of coercion and violence by the police to extract confessions.

implied waiver

the waiver of a right as indicated by an individual's words and actions and the totality of the circumstances.

Adversarial system

trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law

routine border searches:

unintrusive searches that do not require articulable suspicion.

fundamental fairness:

words or actions on the part of the police that the police should know are reasonably likely to lead a defendant to incriminate himself or herself.