Criminal Procedure

Issue spotting for warrants:

(1)Probable cause Rule for probable cause: standard to determine if officer has in fact established probable cause Totality of circumstances: (1) reliable and sufficiency Spinielli test--> to determine reliable and sufficiency Once this is establish...warrant must do two things...both arrest & search (2) arrest warrant must describe persons and things to be seized-->must look for particularity Arrest warrant must have reasonable particularity; person we are seizing in a home...describe them particularly; who person is to be arrested Specific as placed to be searched And specific as to what they are looking for Preliminary to payton; no particularity...not a reasonable search and seizure Go through things to determine if fourth amendment applies

Warrantless Arrest - Exigent Circumstances

Destruction or Loss of Evidence Factors Relevant to Whether an Imminent Risk of Destruction of Evidence Exists The essential question is whether the officers were faced with an "urgent need" to take action.

Valid Search Warrant Element: Neutral and Detached Magistrates

--Cannot Be a Law Enforcement Official --Coolidge v New Hampshire (1971) Court held that the state Attorney General could not issue a search warrant, even though authorized by state law, because as the one conducting the investigation, he could not be considered neutral and detached. --Conducting the Search Destroys Neutrality -- Lo-Ji Sales, Inc. v New York (1979) The Court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized, her neutrality became compromised and thus resulted in an illegal search and seizure ® Magistrate went with them to enforce warrant; searched through stuff ® Charge was obscenity ® Would have to put magazines, booths they searched etc ® Probable cause-->undercover police officer bought two films; totality of circumstances-->how did he believe crime had been committed? Searching for obscene videos ◊ Who determine obscenity? "you'll know when you see it" ® Officer establishing probable cause by: ◊ By hearsay ◊ Independent assessment ◊ Or collaboration ◊ He established independent assessment ◊ Viewed movies ® He's establishing pc with magistrate ® How is magistrate neutral and detached? ◊ No interest ◊ Not relatable or involved in investigation ® Magistrate violated neutral and detached § Conducting the search destroys neutrality □ Magistrate could have gone...but should have not been involved in search § The court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized,..... OTHER REQUIREMENTS FOR MAGISTRATE: --Contingent Fee Destroys Neutrality Connally v Georgia (1977) The Court held that a magistrate that received $5 for every warrant he issued but nothing for any warrant application he denied could not be deemed neutral. The Court held that such a pecuniary interest could impermissibly affect his impartial judgment. DUH!!!!!!!!!! ---"Rubber Stamp" A magistrate who issues a warrant without reading the warrant or the supporting application is not considered neutral and detached as required by the Fourth Amendment. Such a magistrate has become nothing more than a rubber stamp for law enforcement. In United States v Decker (1992), the Court held that a magistrate loses neutral and detached status when he fails to read a warrant because he was "intrigued" by the manner in which the officer became suspicious of the defendant. --Need Not Be Lawyers In Shadwick v. City of Tampa (1972), the Court held that a municipal court clerk, who was authorized by state law to issue warrants, but who was not a lawyer, could constitutionally issue arrest warrants for municipal violations. Federal Courts: Shadwick has no bearing on Federal practice. In Federal courts, magistrates are lawyers who are appointed by the district courts under 18 U.S.C.A § 3060. Major Crimes: The Court in Gates assumed that non-lawyers may issue search warrants for major crimes. --Must Be Competent to Determine Probable Cause Magistrate must have the intellectual ability to determine probable cause; however, since probable cause is a common sense standard, there seems to be no intellectual prerequisite or educational credential required as a matter of constitutional law. Magistrate Decisions There is no requirement that a magistrate give reasons for finding probable cause or for rejecting a warrant application.

Valid Search Warrant Element: Particularity

--Reasonable Particularity The degree of particularity which is reasonable depends on the nature of the place to be searched, and on the information that an officer could reasonably obtain about the location. Urban Areas: Particularity may be more restrictive-must say street address and, if applicable, an apartment number not just an apartment on a particular street. Rural Areas: Particularity may be less restrictive - could say "a blue house with a trailer, with a broken mailbox, on highway 23A two miles from Tannersville" whereas "a house two miles from Tannersville" would not be enough information Particular Description of Place to Be Searched: --Applicability to More than One Location If the warrant describes a location with information as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location. --Incorrect Address One problem that arises with respect to particularity of location, especially in urban areas, is where the warrant gives the wrong address for the premises to be searched. For example, assume that there is probable cause to search an apartment in a building on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A Street. But the actual mailing address is B Street. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address? □ e.g. 94 12th street; grandma's house looks like one house...but there's an A & B even though doesn't say it; if you walk around to alley way, go into side door...great grandma's house; grandma has house in front; looks like 1 house but it's 2 □ So if police put 940 12th street and knock on grandma's door...don't knock and go in and they find some of her stuff she bought on □ If the warrant describes a location with info as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location § Incorrect address □ One problem that arises with respect to particularity of location, especially in urban areas, is whether the warrrant gives the wrong address for the premises to be searched. For example, assume that tere is probable cause to search an apartment in a buildimng on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A street. But the actual mailing street is B. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address? ® Some courts say yes; some say no --Problems in Execution In executing the warrant, the police may commit error if it is clear that the warrant, even though sufficiently particular when issued, was not intended to cover a certain area. Thus in Garrison, the officer could not execute the warrant if it was readily apparent before the search that there were two apartments on the floor instead of one Particular Description of Things to Be Seized: --Reasonable Particularity As with other particularity issues, the test of whether a description of things to be seized is sufficiently particular is one of reasonableness, determined by the information that police could reasonably be expected to know prior to the search. In order to have probable cause to seize something, there must ordinarily be some information which reasonably identifies it, although the degree of precision will depend on the facts and circumstances of each case. --Reasonable Particularity: Particularity by Incorporation Groh v. Ramirez, 540 U.S. 551 (2004) The Court held that a search warrant that failed to particularly describe the items to be seized was invalid on its face, notwithstanding the fact that the items were described in detail in both the warrant application and the supporting affidavit. Warrant was "plainly invalid" in that it "failed altogether" to comply with the particularity requirement of the Fourth Amendment Warrant here "was so obviously deficient that [Court} must regard the search as 'warrantless' within the meaning of case law. Warrant's facial invalidity is not saved by an application that adequately described the place to be searched and the items to be sized when the warrant itself did not describe the items to be seized at all. --Catch-All Clauses in the Warrant Clause that states particular items and includes a phrase such as "any other evidence of the crime" are deemed overbroad unless they are somehow qualified by the particular descriptions that are set forth together with the catch-all clause in the warrant. Nevertheless, phrases such as "other stolen property," other evidence of "narcotics trafficking" and other "misbranded drugs" have been struck down as overbroad. The Court has held that to be sufficiently particular, a catch-all clause must be related to and qualified by previously described property, as opposed to a generalized offense. --Severability If some clauses in a warrant are sufficiently particular and other clauses are not, the overbroad clauses can be severed from those that are sufficiently particular. The warrant, and the search conducted pursuant to it, will then be evaluated on the basis of the valid clauses. If an item is covered by one of the valid clauses, then it is properly seized pursuant to the warrant even if the item is also covered by an overbroad clause such as a catch-all.

The Arrest Power Rule SILA (Searches Incident to Lawful Arrest) Chimel/Robinson

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Curtilage: what is it? What is "curtilage"? How do we define "curtilage'? Is "curtilage" protected by the Fourth Amendment? Factors to determine what is a "curtilage"?

Area immediately surrounding and associated with the home The proximity of the area claimed to be curtilage to the home Whether the area is included within an enclosure surrounding the home The nature of the uses to which the area is put and The steps taken by the resident to protect the area from observation by people passing by. § What is curtilage? How do we define curtilage? Is curtilage protected by the fourth amendment? Factors to determine what is a curtilage? □ Right to privacy □ Think of curtilage like a telephone booth-->closed, keeps people out-->closed door, maintained level of privacy □ Area immediately surrounding and associated with the home ® What are you doing to make this area private? ◊ Putting a gate ® The proximity of the area claimed to be curtilage to the home ® Whether the area is included within an enclosure surrounding the home ® The nature of the uses to which the area is put and ® The steps taken by the resident to protect the area from oberservation by people passing ◊ e.g. driveway curtilage?? ◊ Depends...on whether inside or outside gate. ◊ e.g. what about car sitting there } Look at facts } Creativity in your argument

Open Fields What is an "open field"? Is an "open field" protected under the Fourth Amendment?

Area surrounding the curtilage; no REOP because it does not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. Arguments for and against reasonable expect of privacy in an open fields Does it matter if we post "No Trespassing", "Do Not Enter"? □ No □ Visible to public; away from realm of privacy from your house □ If we know an open field is open to the public...what is a curtilage? Opposite of open field □ Curtilage-->area surrounding your house □ An open field is NOT a curtilage' ® An open field is the area surrounding the curtilage ® Area surrounding the curtilage; no REOP because it does not provide the setting for those Intimate activities that the Amendment is intended to shelter from government interference or surveillance □ Arguments for and against reasonable expect of privacy in an open fields ® Does it matter if we post no trespassing, do not enter? NO ® You can ask them to leave...if they have a warrant, don't matter. But no warrant...can ?

Reasonableness Clause v. Warrant Clause United States vs. Rabinowitz (1950)

At one time, the arrest power rule allowed the police to search a suspect's entire house if they arrested the suspect on the premises. United States vs. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) The proper Fourth Amendment test "is not whether it is reasonable [or practicable] to procure a search warrant, but whether the search was reasonable." The text of the Fourth Amendment bars unreasonable searches and seizures, does not state that warrants are required, but does indicate that when warrants are sought they must meet certain specifications § At one time, the arrest power rule allowed the police to search a suspect's entire house if they arrested the suspect on the premises § Old rule § The proper fourth amendment test is not whether it is reasonable or practicable to procure a search warrant, but whether the search was reasonable The text of the fourth amendment bars unreasonable searches and seizures, does not state that warrants are required but does indicate that when warrants are sought they must meet certain specifications

The Arrest Power Rule - Premises

At one time, the arrest power rule allowed the police to search a suspect's entire house if they arrested the suspect on the premises. United States vs. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) The search incident to arrest exception has always permitted a search of the person of the arrestee and the area within the arrestee's control. Police have historically possessed powers incident to arrest that allow them the automatic right to further intrude upon the arrestee. This right is based on two grounds: To protect the officers making the arrest and To protect against the destruction of evidence There are limitations on the use of the arrest power, one being the geographical scope

Valid Arrest Warrant SILA - Arrest Power Rule is Automatic

Automatic right to secure the person and everything within the grab area of the arrestee w/o reasonable suspicion or probable cause, and without a warrant.

Probable Cause

Balancing Test: Balance (1) the rights of innocent citizens to privacy and security, and (2) the interest of the state in investigating and prosecuting crime

Binoculars a search and seizure???

Binoculars: If the police use binoculars to see what could otherwise be seen through the naked eye, then the use of binoculars as a sensory aid is not a search under Knotts because it results in exposure only of that information which is otherwise visible. On the other hand, if looking at minute details located in a private area, which info could not otherwise be seen through the naked eye, the use of binoculars would be a search under Karo.

Warrantless Entry of the Home (part 3) Emergency Doctrine - Police as Community Caretakers

Community Caretakers Enforce civil interactions with citizens Defuse domestic disputes Safety Officers - move people out of dangerous situations Create an environment that poses less risk of crime Offer guidance to young people Police officers are proactive (unknown but ongoing or future crime) and reactive (complaint responsive) enforcers. Emergency Doctrine - Police as Community Caretakers Brigham City, Utah v. Stuart 547 U.S. 398 (2006) In a unanimous decision, the Supreme Court held that police may enter a building without a warrant when they have an objectively reasonable basis to believe that an occupant is "seriously injured or threatened with such injury." Quoting from Mincey v. Arizona, Chief Justice John Roberts wrote that "[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency."

Dow Chemical

Court took consistent positions in opining that the surveillance tools used by police ("conventional" mapping camera and "fairly primitive" thermal imager) did not qualify as "highly sophisticated surveillance equipment not generally available to the public." Distinction? Degrees of sophistication in surveillance equipment

Seizure of Persons During Warranted Searches

Detention of Individuals While the Premises is Searched Michigan v Summers 452 U.S. 692 (1981) Court identifies three governmental interests in detaining such individuals: --preventing the possible flight of the individual if incriminating evidence is discovered; --minimizing the risk of harm to officers as the suspect might leave and then return with the intention of thwarting the success of the search; and --facilitating the orderly completion of the search by "open[ing] locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand." □ Reason people can be detained if in place; not searched --Detention of Individuals While the Premises is Searched United States v. Festa (D. Mass. 1960) Officers can prevent individuals from leaving the premises "until the officer[s] can be certain that the detainee is not engaged in removing the property specified in the warrant," assuming that the evidence sought is of a nature to be "easily removed or concealed."

Riley (1989) - Actual Access?

Does the public have access to the information in the defendant's backyard by way of aerial surveillance? The court proposed the following: if there were sufficient public access to defendant's backyard by way of a helicopter over flight, then the use of a helicopter by police would not be a search. In Riley, Court was of the view that the test for a search was whether members of the public in fact ordinarily hovered over Riley's yard at 400 feet in helicopters - if so, it would be unreasonable to expect that the police could not do so. Plurality opinion in Riley reasoned that since members of society could legally hover over defendant's property in a helicopter at 400 feet, the police could do so as well. The court relied on FAA regulations, which allow helicopters to be operated at virtually any altitude as long as they do not pose a safety hazard

Knock & Announce Rule

Emergency Exception Exigency-based exceptions (involving danger or destruction of evidence) to the knock-and-announce doctrine are not automatic (so called per se "blanket exceptions) Exigency must be established individually in each particular case (whether or not, for example, it is a felony drug investigation where the existence of exigent circumstances may often be likely). § Emergency exception □ Exigency-based exceptions (involving danger or destruction of evidence) to the knock and announce doctrine are not automatic (so called per se blanket exceptions) □ Execution of a warrant issue § If you have a warrant, police do not have to specifically announce that they are police when knock § When you open door, you have invited person on outside to have something § When you have a search warrant, you CANNOT stop them from coming in ○ Emergency exception: § Standard: the standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard ® Case by case basis § In order to justify a no knock entry, the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would be dangerous and futile or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence □ No knock warrant--don't have to knock and announce □ Don't have one of those warrants--have to knock □ As an officer, can also establish reasonable suspicion before knocking ® They hear flushing, see people rushing around ® Don't have to knock then...exigent circumstances --Emergency Exception Standard: The standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard. "In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous and futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.

Reasonableness Clause v. Warrant Clause California vs. Acevedo (1991)

Established a rule that the police may search any container in a car without a warrant if they have probable cause to believe the container holds evidence of criminal activity. Acevedo rule - officers may not open and search a container without a warrant until the container is placed in a car. □ Once container become a part of a less protected area (a car) □ When you are stopped and give consent to search or police have probable cause...police can search glove compartment, console, purse, and down by feet

Chimel v. California

Geographical Scope of the Arrest Power Rule Scope of a search incident to arrest to areas which in fact are accessible to the arrestee. Justice Stewart, writing for the Court, stated that "[t]here is ample justification * * * for a search of the arrestee's person and the area within his immediate control-construing the phrase to mean the area from within which he might gain possession of a weapon or destructive evidence." Thus, a search incident to arrest is confined to the search of the suspect and the search of his or her "grab area" or "wing span."

Warrant Required for an In-Home Arrest Arrest in the Course of Executing a Search Warrant

If an officer has a valid search warrant, an arrest of the defendant in his home during the course of their search is valid even though the officer does not also have an arrest warrant.

• When is an arrest made in the home? ○ Common hallways § If the arrest is made in a common hallway outside the defendant's apartment, is a warrant required?

If the arrest is made in a common hallway outside the defendant's apartment, the arrest is considered a public arrest and does not require a warrant.

Canine Sniffs: Illinois v. Caballes

Illinois v Caballes: Dog sniff of exterior of trunk of car to determine whether drugs are present is not a search and not subject to Fourth Amendment protections.

In Anticipation of a Warrant

Illinois v. McArthur 521 U.S. 326 (2001) The Court held that "[i]n sum, the police officers in this case had probable cause to believe that a home contained contraband, which was evidence of a crime. They reasonably believed that the home's resident, if left free of any restraint, would destroy that evidence. And they imposed a restraint that was both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests. In our view, the restraint met the Fourth Amendment's demands." ○ Went inside house and officer sat and watched; waiting for warrant; claimed he was seized cause not allowed to do what he wants to do ○ Court said it was reasonable ○ Court looks at reasonableness standard when actions of police results in leaving the officer there while other gets warrant

Greenwood (1988): Surveillance outside the curtilage, near a house, but not in an open field

In Greenwood, Court ruled that a person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal. Fails objective prong of Katz two-part test. ○ Garbage is NOT protected ○ What you knowingly expose to the public is not a search § How do you knowingly expose your garbage to the public? You put it out there ○ No search-->no warrant needed No reasonable expectation of privacy; do have a subjective one but not one society deems as reasonable

United States v. Robinson

In United States v Robinson (1973), the Supreme Court addressed questions concerning the scope of the search incident to arrest exception (search of the person of the arrestee and the area within the arrestee's control.) Searches of the Person Incident to Arrest The Court held that a valid arrest supplies police officers with the automatic power to neutralize an arrestee in order to protect against danger to the officer and destruction of evidence, (regardless of whether such risks exist on the facts. ) The Court further held that police officers have the automatic right to conduct a complete body frisk, and to pull out and search all objects on an arrestee's person, (even if there is neither a factual risk of harm to the officer nor a risk of destruction of evidence.) Class Notes: ○ How do we take search incident to lawful arrest to the next step? What does Robinson's give us that helps us determine the scope of the authority to search? ○ If looking at containers § How does Robinson describe container? And what can you do if container within grab area? □ Object capable of holding another object □ Believe of criminal activity □ Reasonable suspicion ○ Arrested in car; got out of car ○ Why is Robinson considered part of person § If something closely connected to your body is searched...it goes under person automatically □ Jacked close to body □ Jacket within immediate control ○ We can search containers in which there is reasonable suspicion that criminal activity is taking place. § How did they have reasonable suspicion? □ Reasonable suspicion of container is based on reasonable suspicion that thing within the container is criminal (e.g. cigarette pack) ○ What is the scope of this search? That's what this hinges on § You cannot prod or push; officer had to have reasonable suspicion based on touch □ Can search container if believe criminal activity; but have to know with reasonable certainty there is criminal activity □ Why would crumpled cigarette make reasonable suspicion criminal activity? ® Yes, pills; can feel without prodding and pushing § Lawfully able to search; automatic right. Searches of the Person Incident to Arrest § The court further held that police officers have the automatic right to □ Conduct a complete body frisk, and (not prod, frisk) □ To pull out and search all objects on an arrestee's person ® (even if there is neither a factual risk of harm to the officer nor a risk of destruction of evidence) e.g. police arrest you and stick hand down bra Argue: invasion of privacy; not just you can do anything

Determining Exigency

In spite of the presumption that a police officer's entry into a home without a warrant is unlawful, both state and federal courts have carved out a number of exceptions to this general rule. Included among the judicially recognized exceptions to the Fourth Amendment's warrant requirement is the exigent circumstances exception. The U.S. Court of Appeals for the First Circuit in United States v. Rengifo indicated that "[e]xigent circumstances occur when a reasonable officer could believe that to delay acting to obtain a warrant would, in all likelihood, permanently frustrate an important police objective, such as to prevent the destruction of evidence relating to criminal activity or to secure an arrest before a suspect can commit further serious harm." 858 F.2d 800, 805 (1st Cir. 1988)

Kentucky v. King 563 U.S. _, 131 (2011)

In this case a police officer knocked on the door, which prompted the destruction of evidence. The officer then entered the home under the exigent circumstances doctrine, without a warrant. The Court held that "the conduct of the police prior to their entry into the apartment was entirely lawful." The Court found that the "exigent circumstances rule . . . . [does] apply in the case at hand [even though] the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence." The Court held that where police do not violate the Fourth Amendment (or threaten a violation) in their preceding conduct, warrantless entry of a home to prevent destruction of evidence is reasonable and therefore permissible under the Fourth Amendment. The court indicated that although preventing the destruction of evidence is within the scope of the "exigent circumstances" exception to the Fourth Amendment warrant requirement, police-created exigencies do not justify a warrantless search. The Court held, however, that "reasonableness" - not the tests elaborated by Kentucky's Supreme Court and other lower courts - is the standard for determining whether the police-created exigencies doctrine is applicable. Stating that "the Fourth Amendment requires only that the steps preceding the seizure be lawful," the Court held that there was no violation of the Fourth Amendment in the police conduct. Justice Alito argued that occupants who elect to destroy evidence - rather than refusing entry or electing not to respond - create the exigent circumstances that justify a warrantless search. Justice Ginsburg dissented, arguing that the Court had reduced the Fourth Amendment's force by providing officers with a way to dishonor the warrant requirement. She stated, "[t]he Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court's reduction of the Fourth Amendment's force."

Warrantless Entry of the Home (part 2) Destruction or Loss of Evidence: Minor Crimes Welsh v. Wisconsin

It is more difficult to establish exigency circumstances is the crime is a minor one. For a noncriminal, civil forfeiture offense for which no imprisonment was possible, the Court concluded that application of the exigent circumstances exception "should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed." The exigent circumstances doctrine will be unavailable only when the evidence at risk pertains to offenses similar to that in Welsh: noncriminal offenses for which no imprisonment is authorized.

Recap: Search

Katz: Reasonable Expectation of Privacy: Two-Part Test White: Reasonable Expectation of Privacy: Companion transmitting or sharing the conversations with the government. Smith: Reasonable Expectation of Privacy: Telephone numbers dialed from home. Knotts: Reasonable Expectation of Privacy: Prior to receipt by suspect of a drum, third party-owner consented to government's request to place a beeper in that drum for surveillance and monitoring of suspect's movements from one point along public roads to a residence. Caballes: Reasonable Expectation of Privacy: Dog sniff of exterior of trunk of car to determine whether drugs are present. Karo: Reasonable Expectation of Privacy: Prior to receipt of can of ether, third party consented to police placing beeper in can. Police, without a warrant, probable cause or reasonable suspicion, monitored suspect's actions over public roads and determined whether suspect was in a home at a particular time.

REOP of guest who does not stay overnight

Look at circumstances to determine REOP (key, right to bring guests without checking with owner, frequently uses home, caring for owner's kids, ability to exclude others from home, visiting home when owner not present. Train Compartment and Ship's Cabin - Is this like a car or a home? ○ Train Compartment and Ship's Cabin--is this like a car or a home? § Major difference between a home and a car-->it moves § A train and ship moves § What are you going to look for your reasonable expectation of privacy-->if you are moving or stopped....claim same right to privacy based on home □ All about exposure to public

Executing a Warrant after Entry

Maryland v. Garrison 480 U.S. 79 (1987) The Court held that the warrant was sufficiently particular as issued, even though as it turned out it authorized the search of two apartments rather than one. The Fourth Amendment requires reasonable particularity, and accordingly allows for reasonable mistakes of fact. As the Court stated, "the validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover an disclose, to the issuing magistrate."

Tennessee v. Garner

• When is it reasonable to use deadly force? ○ Safety of public, officers, and substantial and immediate risk of injury § Has to be substantial and immediate ○ Fleeing felon, substantial and immediate danger, and felon armed § Not just danger; person has to be armed § Fleeing felon with gun; know they are armed and dangerous because they are and dangerous based on crime they allegedly committed § Courts look heavily at aspects to determined reasonable § "where the suspect poses no immediate threat to the officers or to other, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Man didn't have gun; running and was shot in back Searches of the Person Incident to Arrest When is it reasonable to use deadly force? Tennessee v Garner (1985) "Where the suspect poses no immediate threat to the officer or to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

Test to Determine if Seizure has occurred

• Whether a reasonable person would have concluded that the police had in some way restrained his liberty so that he was not free to leave • Not feel free to leave • e.g. in class • When an officer asks your name, your required to give a name • Reasonable person-->law-abiding citizen under any circumstance; in this circumstance reasonable person would be a person who had no committed a crime • Reasonable person • Not free to leave-->determined by actions and words of officer

Measuring Involuntariness

• Whether the defendant's will was overborn at the time he confessed ○ Meaning your free choice; designated as your ability to say no • The totality of all surrounding circumstances--both the characteristics of the accused and the details of the interrogation ○ What were these characteristics to show these defendants will were overborne? § They were not educated; Mississippi-->race relations were at an all-time low § What did these black men believe they have to do with relations to people who were not black? □ Felt like they had to conform □ It's not about whether they committed the crime or not; it's about whether they confessed involuntary

Execution of a Search Warrant: Notice Requirement

Notice Requirement 18 U.S.C.A § 3109 provides that a law enforcement officer may break into premises to execute a search warrant "if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." This Federal "knock and announce" statute, similar to those in most states, codifies the longstanding common law rule of notice conditioning official entry to premises, absent exigent circumstances. --Notice Requirement Rationale Decreases potential for violence Decreases possibility of police entering wrong premises Allows for at least a minimal amount of time to prepare for official entry Provides occupants with opportunity to voluntarily allow officers to come into their home, facilitating and speeding up the search process while, at the same time, minimizing the privacy intrusion and the possibility of property damage. --Notice Requirement Constitutional Basis: Wilson v Arkansas (1995) Court held that "in some circumstances an unannounced entry into a home might be unreasonable under the Fourth Amendment." The practical effect of Wilson is limited to those few states which have no statute or rule requiring announcement before entry. Failure to knock can affect reasonableness of search § Manner of entry □ Notice must be given before an officer can break open an outer or inner door or window of a house. Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed door but unlocked door § Compliance with the notice requirement □ How are the policeman's actions perceived by the occupants not on his magic words ® Based on occupants perception not police's actual words ® When the officer knocks on the door and says nothing and officer says "its me..." when he then comes in the court is going to look at how the occupants determine whether this officer gave notice he was going to enter or break it down Notice Requirement Manner of Entry Notice must be given before an officer can "break open an outer or inner door or window of a house." Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed but unlocked door. Sabbath v United States (1968) Compliance With the Notice Requirement How are the policeman's actions perceived by the occupants not on his magic words.

Permissible Exceptions to Knock & Announce Rule

Officers have to knock and announce their presence before entering a house to serve a warrant but there are exceptions (established by court decisions and state law.) Permissible exceptions include: ---When announcing presents a strong threat of violence or danger to the officers --Danger that contraband or other property sought might be destroyed --Persons within the premises are in imminent peril of bodily harm --Engaged in process of destroying evidence or escaping because aware of police presence --When person to be arrested is in process of committing a crime --Hudson v. Michigan 547 U.S. 586 (2006): A violation of the knock and announce rule does not require suppression of evidence found in a search. Exclusion may not be premised on the mere fact that a constitutional violation was a "but-for" cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Class Notes: ○ Balancing of interests in knock and announce rule § Governmental investigation of crime vs. reasonable expectation of privacy § Such that we want to protect our officers and keep them safe because we do allow people to protect their premises § Not justified in using deadly force because put on notice when officer's § A violation of the knock and announce rule does not require suppression of evidence found in a search § Exclusion may not be premised on the mere fact that a constitutional violation was a but for cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion § Exclusionary rule not applicable for violation of knock and announce rule --Forcible Entry After Knocking and Announcing United States v. Banks 520 U.S. 385 (1997) (2003) Police officers may forcibly enter the premises fifteen to twenty seconds after they knock and announce their presence if there is an exigency of possible destruction of evidence. Reasonableness of wait time - deference given to facts as known to the police

United States v Knotts 460 U.S. 276 (1983)

Police are not entitled to use electronic or other mechanical devices to determine whether a particular person or thing is in someone's home at a particular time without a warrant, probable cause, or reasonable suspicion. Rule: A seizure of property occurs when there is a "meaningful interference" with possessory interests. ○ Put beeper in chloroform ○ In car ○ Detected with beeper everywhere he went ○ Was not a search because only showed where public could see where he went § e.g. helicopter, I could have followed him ○ How do you knowingly expose to your public where I am? § e.g. facebook, daniel's app, google earth, google glasses

Exigent Circumstances

Police do not have to obtain a warrant if exigent circumstances exist. However, the exigency exception still requires officers to have probable cause. For example, if exigent circumstances exist, officers can enter a person's home without a warrant to arrest him - but only if they have probable cause for the arrest.

Valid Search Warrant Element: Probable Cause

Probable Cause: Based Only on Facts Presented to the Magistrate --To protect against an officer working backwards and finding evidence then constructing a factual scenario, probable cause must be judged solely by the information presented to the magistrate in the warrant application. Affidavits: A warrant is ordinarily obtained by submitting, to the magistrate, an affidavit of all the facts supporting probable cause. Some courts have held that probable cause must be determined solely on the basis of the info submitted in the affidavit. F.R.C.P 41(c). Other courts have held that the affidavit can be supplemented by sworn oral testimony before the magistrate. ○ Broken into two parts: § (1) places to be searched § (2) people to be seized --Telephone Warrants Most jurisdictions allow telephonic warrants, even when written warrant requirement applies; however, a warrant cannot be obtained by mere telephone conversation. The officer must prepare a written "duplicate original warrant," and then read that warrant verbatim to the magistrate. The magistrate then transcribes what is read in order to prepare an original warrant. A record must be made of the conversation. Those who give telephonic warrants are sworn by the magistrate. Most states have a rule of criminal procedure permitting telephonic warrants. § On call. Have to be available when officer requesting warrant § Some can be done telephonically; az allows it § Not just call him; but officer also dictates info that is given on the phone; magistrate dictates same info; officer sworn under oath that info is accurate; and warrant is given □ Lot more work but still allowed --Warrant is Obtained Ex Parte The defendant is not present at a warrant application, and does not at that point get an opportunity to challenge the police officer's submission on probable cause. However, the validity of the warrant can be attacked at a suppression hearing before trial.

Valid Arrest Warrant Does not authorize search beyond grab area unless

Probable cause to believe the person is presently within premises and/or seizable items are on the premises and impracticable to get search warrant; Exigent circumstances warrant search; or Consent.

Lack of REOP in shelter - Do you pay rent? Exclusive control or sole access to the room? Do you have a key?

REOP for the driver authorized by renter but not by rental company - Consider the circumstances, not bright line rule, concerning the use of the car and the nature of the relationship between the defendant driver and the person who rented the car. § General shelter where there are a bunch of people-->probably no real expectation of privacy § There are now shelters where you have the same room; no key but you have the same room; you can leave your stuff in there...allow you to stay there for a week or two. □ Many domestic abuse shelters run like apartments now

Ollie Ocean was planning to rob Casino Arizona. While planning the heist, he visited his lawyer's firm in downtown Phoenix. Ocean's lawyer, Joann Galloway, was a well-known criminal defense attorney. Remembering that he had forgotten to mention a crucial piece of information about the heist to his explosives expert, Basher, Ocean placed a call from the firm's "telephone room." The telephone room is a small, windowless room with a locking door that the firm maintains just off the main lobby so that visitors will be able to make calls undisturbed and without interrupting firm business. Ocean did not lock the door when he called Basher. Long suspecting that Ocean was planning a "job," but without enough hard evidence to secure a warrant, Phoenix police detective Roscoe P. Coltrane followed Ocean to Galloway's office. Coltrane had detailed structural drawings of every building Ocean visited frequently, including Galloway's law firm. Two weeks earlier, the police department obtained a prototype of a sophisticated tracking device that measures a subject's body heat and provides an image to the user. The manufacturer gave prototypes to the police departments in Phoenix and four other cities for a three-month test before releasing the product on the open market. Coltrane used the prototype to follow Ocean's movements inside the law firm. By using the tracking device and the drawings, Coltrane determined that Ocean had gone into the firm's telephone room. Remembering that the FBI had installed wiretapping equipment (legally) on the firm's telephone lines as part of an investigation unrelated to Ocean, Coltrane called and asked the local FBI office to listen to and record Ocean's conversation. Based on the telephone call, Coltrane obtained warrants and arrested Basher and Ocean. Both want to challenge the arrest warrants on Fourth Amendment grounds. Using the cases and materials you prepared for today's class: 1. As counsel for Basher and Ocean, what Fourth Amendment challenges would you bring? 2. As counsel for the government, how would you answer any an- ticipated Fourth Amendment challenges brought by Basher and Ocean? 3. As the judge confronted with these arguments, how will you rule and why?

Relevant cases Katz & Greenwood : Expectation of privacy - subjective (did Ocean actually expect privacy in the phone room and rooftop meeting?) and objective (would a reasonable person have expected privacy in the phone room and rooftop meeting?) Karo : Police are not entitled to use electronic or other mechanical devices to determine whether a particular person or thing is in someone's home at a particular time (but does this extend to businesses?) without a warrant, probable cause, or reasonable suspicion. Kyllo : Use of an imaging device not generally available for public use is a search for Fourth Amendment purposes, and is presumptively unreasonable without a warrant. (But since this device is about to be released on the market, is it "available for public use"?) Suggestions for Answers Basher's problem Is really one of standing. He will have to somehow demonstrate either 1) that he can attach himself to the police's invasion of Ocean's privacy, or 2) that he had some privacy interest of his own that the police invaded. He'll have a tough time with either argument because the police were tracking Ocean, not Basher. Basher's lack of standing won't allow him to attach himself to Ocean's claim and since the police didn't tap his phones, he won't be able to establish his own claim. Ocean's problem The first issue is whether Ocean can demonstrate that Coltrane violated his Fourth Amendment rights when Coltrane eavesdropped on Ocean's telephone call held in the "telephone room" at the firm of Ocean's lawyer, resulting in Ocean's arrest. The Fourth Amendment guarantees a citizen's right to be free of unreasonable government searches and seizures. Government action constitutes a search when the action 1) intrudes on a citizen's subjective manifestation of an interest in privacy, and 2) the citizen's privacy interest is one that society views as objectively reasonable. In Katz v. United States, the government convicted the petitioner of illegal wagering in part based on evidence from telephone conversations on which the FBI eavesdropped. The appellate court affirmed the conviction, rejecting the petitioner's Fourth Amendment claims because the FBI had not physically intruded into the public telephone booth from which the petitioner placed the calls. The Supreme Court overturned the conviction, holding that the government had in fact searched the telephone booth by intruding on the petitioner's subjective privacy interest, an interest that is objectively reasonable. In Katz, the Supreme Court found that a citizen's desire to keep a telephone conversation private is a legitimate interest recognized by society. The question for Ocean, then, is whether he subjectively manifested that legitimate interest. Ocean made his telephone call from a small-enclosed room that was not accessible to the public, but only to the law firm's visitors. The firm makes the room available so that its visitors can make "undisturbed" telephone calls. By going into that room to place his call, Ocean subjectively manifested his intent to keep his call private. Arguably, the government could state that Ocean's decision to make such a sensitive call from a place other than his or someone else's home may indicate that he had a lesser expectation of privacy. Moreover, he chose to keep the telephone room's door unlocked when he went in to make his call. The government's arguments should probably fail. A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest. The citizen must simply indicate his or her intent that no unintended persons hear or see the information he or she desires to keep private. Were a citizen required to meet a "most significant measures" test, the Supreme Court would have upheld the petitioner's conviction in Katz since he placed his call from a public telephone booth. Ocean should be able to demonstrate that Coltrane violated his Fourth Amendment rights unless Coltrane's actions are found reasonable. In addition to Coltrane's eavesdropping on his telephone call, Ocean's second issue is whether he can challenge Coltrane's use of the electronic tracking device as a Fourth Amendment violation. The government violates the Fourth Amendment when it, without a warrant or at least reasonable suspicion, uses electronic or other mechanical devices to determine that a particular person or thing is in an individual's home at a particular time. Ocean could argue that Coltrane had no warrant to use the tracking device to monitor Ocean's movements inside the law firm, nor did he have any reason to suspect that Ocean would be involved in criminal behavior inside the firm. Ocean could argue, therefore, that Coltrane violated the Fourth Amendment when he used the device. However, the government could argue that Coltrane knew that Ocean was in the firm without using the device. He was able to see Ocean enter the firm just as any other person might, so Ocean had no expectation of privacy in the fact that he was in the firm. The question is whether Coltrane's use of the device to track Ocean's movements inside the firm violated Ocean's Fourth Amendment rights. The government could argue that just as Ocean did not have a reasonable expectation of privacy in the fact that he entered the firm, he probably did not have a reasonable expectation of privacy in the fact that he was in the telephone room, either. Any person present in the firm's lobby when Ocean entered the room or who asked the receptionist where Ocean was would discover that he was in the telephone room. Although the only reason that Coltrane knew Ocean's whereabouts after Ocean entered the firm was that he used the tracking device, Coltrane's use revealed information that any member of the public could have gained. When an officer's methods reveal information that any person could have observed, the Supreme Court in Karo stated that the officer's conduct is not a search. Ocean might argue that even though Coltrane could have observed him entering the firm, Coltrane's use of a technology not generally available to the public makes his tracking of Ocean's movements a search. The government would probably respond by stating that the technology is in the final testing stage before release to the public at large. Both government arguments, however, are probably unavailing. The device Coltrane used was not available to the public at the time Coltrane used it. Constitutional violations are evaluated at the time they occur, and Coltrane's device was not yet in general public use when he observed Ocean. The Supreme Court in Kyllo held that using a technology not in general use to obtain information that could not have been obtained without invading a constitutionally protected area is a search. In Katz, the Supreme Court held that the Constitution protects a citizen's subjective manifestation of a privacy interest when that interest is objectively reasonable; however, Ocean probably cannot demonstrate an objectively reasonable expectation of privacy in the fact that he was in the telephone room at that moment. His argument that Coltrane used a technology not available to the public is probably irrelevant because Ocean is not likely to establish that he was in a constitutionally protected area. The result in this case is that Basher does not have standing to establish his own Fourth Amendment claim. Ocean will probably not be able to argue that Coltrane violated his constitutional rights by determining that Ocean was in the telephone room. Ocean probably will be able to exclude evidence of the substance of his conversation with Basher because Ocean subjectively manifested a reasonable expectation of privacy in the conversation itself and the law recognizes and protects citizens' privacy interest in conversations, even when those conversations take place while the citizen is physically in a public place.

Warrant Clause: When Are Warrants Required? Exceptions: Exigent Circumstances

Risks excuse the Fourth Amendment's warrant requirement: 1)hot pursuit of a fleeing felon; 2)risks to police or public safety 3)risk of imminent destruction or loss of evidence 4)need to prevent a suspect's escape. In absence of hot pursuit, probable cause to believe that one or more of the other factors justifying entry must be evident; in assessing risk of danger, officer should consider seriousness of crime and likelihood Suspect armed. Minnesota v Olson (1990) • Exigent circumstances...don't have time to get warrant ○ Have to have probable cause ○ No time to get warrant • Risks excuse the fourth amendment warrant requirement: ○ Hot pursuit of a fleeing felon ○ Risks to [police of public safety § What is crime? § Armed and dangerous? ○ Risk of imminent destruction or loss of evidence § **just because it's a drug case, it doesn't mean you can argue with explicit argument that it's a drug case § Court looks at proximity of where you are □ e.g. police knock on door; they hear flushing □ Hear scampering; hear people throwing stuff out window ○ Need to prevent a suspect's escape § Hear people running around; hear people jumping out window • In absence of hot pursuit, probable cause to believe that one or more of the other factors justifying entry must be evidence; in assessing risk of danger, officer should consider seriousness of crime and likelihood suspect armed. Olson

Smith v. Maryland

Smith v Maryland (1979): Reasonable Expectation of Privacy: No REOP in the telephone numbers dialed from home. The installation of a pen register on telephone companies premises and the use of it by the government does not constitute a search within the meaning of the Fourth Amendment. Pen registers do not acquire the contents of conversations, or even tell if a conversation took place, it only provides a listing. Information available to telephone company. Warrant not required! ○ NOT PROVIDING ANY INTIMATE ACTIVITIES § IS IT IN THE PROCESS OF PROVIDING INFO THAT IS NOT CONSIDERED...ALSO PROVIDING CONSTITUTIONALLY PROTECTED INTERESTS AT THE SAME TIME?? (add to test) □ Not restricted from public; □ Fourth amendment does not protect places nor phone numbers ® Protects convos but not phone numbers ® Police can now take your keys...whoever has key can be considered an owner

Determining the grab area Case-by-Case Basis

Some courts say grab area is where the defendant could have reached when arrested even though the search or seizure occurs after the defendant has been moved. Most courts determine the grab area by analyzing where the defendant could have reached at the time of the search. This may be remarkably broad under the circumstances. Class Notes: □ Relates to both persons and cars □ Some courts say grab area is where the defendant could have reached when arrested even though the search or seizure occurs after the defendant has been moved. ® Issue is: where you could have reached at the time of being arrested ® Have to look at actions of both parties; officers and arrestees ◊ At this point you are a suspect or arrestee ® Moment you are arrested-->not free to leave; under control of police ◊ If arrestee says "I want to go get my shoes" and shoes right in front of bed...wherever wing span is where standing with shoes ® Most courts ....

United States v. White

Statements made to wired Government informant were legally obtained Fourth Amendment does not protect the defendant's mistaken assumption that "a person to whom he voluntarily confides his wrongdoing will not reveal it" The Court concludes that "one contemplating illegal activities must realize and risk that his companions may be reporting to the police."

○ Kyllo v. United States A federal agent, suspecting Kyllo (D) was cultivating marijuana in his residence, used a thermal-imaging device to detect the relative amount of heat emanating from his residence as compared to those surrounding him. After reviewing the test results, the agent concluded that the heat disparity between Kyllo's (D) residence and those around him suggested the presence of high-temperature lamps used to grow marijuana. On the basis of the test results and other evidence, the agent obtained a warrant and seized over 100 marijuana plants. Kyllo (D) moved to suppress the evidence at trial, which motion was overruled.

Supreme Court held that the use of a thermal imaging device was a search protected by the Fourth Amendment because the device obtained information that could not have otherwise been obtained without physical "intrusion into a constitutionally protected area." The Court focused on the fact that the device was used to detect information inside the home and the device was not in general public use. § Used heat sensing equipment to see if there's weed in there § Heat sensing equipment can see people, someone taking a bath, heat lamps from weed § Gave info that was constitutionally protected and info that was not constitutionally protected □ 3rd part to test □ Even if it determines non-constitutionally protected interests...but if it also exposes constitutionally protected interests...it is a search. ® Changes over time if technology changes; if technology is readily available to the public...not a search if anyone can do it ◊ What you going to do to combat that argument? } Something that counters it; remember what you want to do it...is make it be private } "but wait a minute...I made this private. e.g. closed all the shutters. Added this over here.." even if everyone in public could get it, I'm ascertaining with significant measures to make it private □ Supreme court held that the use of a thermal imaging device was a search protected by the fourth amendment because the device obtained information that could not have othwewise been obtained without physical intrusion ..... § Sensing equipment was NOT available at this time?

Ciraolo (1986) - Aerial Surveillance of a Curtilage

The Court concluded that "the Fourth Amendment simply does not require the police travelling in public airways [1000 feet] at this altitude to obtain a warrant in order to observe what is visible to the naked eye." ○ What tells us whether it's a curtilage or an open field? § Katz-->what we knowingly expose to the public...it's not a search. If I can see it, the gov. can see it. § Whether or not the public can see it? How do we determine whether public can see into our curtilage? □ FAA tells you how high you can fly □ Riley-->400 feet □ Ciraolo-->100 feet ® How do we determine whether public can fly 1000 or 400 feet? FFA ◊ Public can get a pilot's license; if I can do it...gov. can do it § Ciraolo-->no search; because anyone can fly over 1000 feet; federally regulated distance. Regular eye to see it § Riley--> greenhouse; roof over enclosure...easier to spot drugs; no search because no reasonable expectation of privacy-->left doors open and if I can see it...gov. can see it. □ Riley could have shut the doors or put black stuff all around his greenhouse

No Warrant Required for a Public Arrest United States v Watson (1976)

The Court held that the Fourth Amendment does not require an officer to obtain a warrant before making a public arrest. This is so even if the officer could have obtained a warrant without jeopardizing the arrest. Thus, for public arrests, the officer can determine for himself whether probable cause exists to support the arrest.

Warden v. Hayden 387 U.S. 294 (1967)

The Fourth Amendment allows intrusions upon privacy under these circumstances (officers were in pursuit of a suspected armed felon in the house which he had entered only minutes before they arrived,) and there is no viable reason to distinguish intrusions to secure 'mere evidence' from intrusions to secure fruits, instrumentalities, or contraband. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit or contraband Some "mere evidence" in one case may be "instrumentality" in another case. the "mere evidence" collected must be believed to have some aid in a particular conviction- clothes in the washing machine matched the description of the robber and therefore the officer had reason to believe that the items would aid in identification of the culprit the officers were not in the house searching for "mere evidence", but came across it in search for the instrumentalities, therefore it is okay the "mere evidence" rule has only caused great confusion and it is questionable whether it affords meaningful protection

Execution of a Search Warrant

The Fourth Amendment does not contain specific language directing law enforcement agents on the correct procedure for executing a warrant. How- ever, the general clauses requiring probable cause and reasonableness have been interpreted as placing constitutional limitations on the manner in which agents perform those duties. --Time of execution Many jurisdictions have statutes or court rules providing that a search warrant must be executed within a filed period of time (e.g. five days). If law enforcements execute the warrant after that set time, the prevailing view requires evidence found in the search to be suppressed. --New Information Delay in executing the warrant may mean that the probable cause which existed when the warrant was issued is gone by the time the warrant is executed. In such a case, the search would be unconstitutional. --Time of execution Anticipatory Search Warrants The search warrant in such a case is grounded in the magistrate's determination that, if certain expected events happen in the future probable cause will then exist to execute the warrant. Some lower courts have upheld such warrants. --Execution in the Nighttime States restrict time of execution based on daytime, nighttime, or both. Fed.R.Crim 41 restricts searches to daytime unless "reasonable cause" is shown. Daylight is specified by certain hours in the state statutes. "It is entry of the police in the nighttime, not their mere presence, that is thought to call for particular judicial authorization." State v Valenzuela (1987)

Katz

The Fourth Amendment protects people not places. "What a person knowingly exposes to the public . . . is not the subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." The lip-reader hypothetical is intended to raise the important issue of whether the mode of governmental intrusion should matter in "search" analysis. Justice Stewart distinguished between the intruding eye (no protection in the booth) and the uninvited ear. By standing in a glass booth, like standing in a glass house, Katz knowingly exposed himself, and his lips, to others. One could infer from this that the mode-of-intrusion is relevant to "search" analysis. Sometimes lower courts have focused on the mode-of-intrusion distinction Sometimes lower courts have focused on the mode-of-intrusion distinction. For example, one court held that the government conducted a search when it secretly videotaped activities in a room used by public employees during their work breaks, although the room was not private and could have been entered freely by anyone. State v. Bonnell, 856 P.2d 1265 (Haw. 1993). And, the California Supreme Court in Triggs held that a "search" occurred when the police surreptitiously observed the homosexual activities going on in a doorless—yes, doorless—toilet stall in a public restroom. Sure, the men knowingly exposed their activities to anyone who entered the restroom, since their actions would have been visible in the absence of door stalls, but the court focused on the means used to observe the activities. Subjective and Objective test The Fourth Amendment guarantees a citizen's right to be free of unreasonable searches and seizures. Government action constitutes a search when the action 1) intrudes on a citizen's subjective manifestation of an interest in privacy, and 2) the citizen's privacy interest is one that society views as objectively reasonable. "Most Significant Measures" A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest. The citizen must simply indicate her intent that no unintended persons hear or see the information she desires to keep private. A defendant who demonstrates the violations should be able to establish a Fourth Amendment violation unless the Government's actions are found to be reasonable.

United States v. Jones Government prosecutors, suspecting Jones (D) of narcotics trafficking, installed a GPS tracking device under Jones's (D) Jeep while it was parked in a public parking lot. The device tracked the vehicle's movements over the next four weeks and communicated the location of the Jeep by cell phone to a government computer, resulting in more than 2,000 pages of data. The GPS evidence was admitted at Jones's (D) criminal trial and he was convicted. The court of appeals reversed Jones's (D) conviction on the ground that the evidence obtained by the warrantless use of the GPS device violated the Fourth Amendment.

The Government physically occupied private property for the purpose of obtaining information. Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing. * * * By attaching the device to the Jeep, officers encroached on a protected area. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. ○ Was the use of the GPS devise a search? ○ If so, is a warrant required? ○ Did the gov. obtain a warrant? § Warrant was used § Use of GPS was not a search...depends on when placed on car; □ Was a search; exposed intimate details e.g. having an affair, went to abortion clinic □ Were supposed to put GPS in DC but put it on in Maryland § The government physically occupied private property for the purpose of obtaining info § Jones, who possessed the jeep at the time the gov. trespassorily inserted the infor-fathering device, is on much different footing. By attaching the device to the Jeep, officers encroached on a protected area. § But as we have discussed the Katz reasonable expectation of privacy test has been added to, not substituted for, the common law trespassory test.

Factors - Whether an Imminent Risk of Destruction of Evidence Exists

The degree of urgency involved and the amount of time necessary to obtain a warrant. A reasonable belief that contraband or evidence is about to be removed. The possibility of danger to police officers guarding the premises while a search warrant is sought. Information indicating that suspects know that the are on their trail. The ready destructability of the evidence. This is obviously an important factor in drug cases

"Urgent Need" Factors

The gravity of the offense of which the suspects are to be charged. Whether the suspects are reasonably believed to have firearms in their possession. Whether probable cause is clear or is rather a close question. The stronger the showing of probable cause, the less crucial the need to obtain a magistrate's review, and the more likely it is that a court will accept the argument that emergency circumstances excused the failure to bring the facts before a magistrate. The likelihood that suspects may escape in the absence of an immediate entry. The peaceful circumstances of the entry.

Police Created Exigency

Under this so-called police-created exigency doctrine, a number of lower courts had held that officers could not rely upon this exception if they had created the very exigency which they sought to use to justify acting without a warrant. See United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986); United States v. Richard, 994 F.2d 244, 249-250 (5th Cir. 1993); and Mann v. State, 357 Ark. 159, 161 S.W. 3d 826, 834 (Ark. 2004). Other courts did not find a Fourth Amendment violation simply on the grounds that officers created the exigency. See United States v. MacDonald, 916 F.2d 766, 772 (2nd Cir. 1990); State v. Robinson, 327 Wis.2d, 302, 326-328; and 786 N.W. 2d 463, 475-476 (Wis. 2010).

Impermissible Creation of Exigent Circumstances

The warrant requirement will not be excused where the police have impermissibly created exigent circumstances. For example, officers cannot goad a suspect into running away in order to engage in hot pursuit. However, as the courts have noted, "in some sense the police always create the exigent circumstances that justify warrantless entries and arrests." It is important to distinguish impermissible creation of exigency from legitimate police activity.

Canine Sniffs: United States v. Place

United States v Place (1983) Court held that a dog sniff of closed luggage is not a search. A dog sniff can only tell the officer whether the luggage contains contraband or not. There is no protectable privacy interest in contraband, and through the sniff the officer learns nothing about any personal innocent information contained in the luggage. The canine sniff is not a search because it can never disclose a protected Fourth Amendment secrecy interest. ○ Do you have a reasonable expectation of privacy that somebody won't sniff your trunk? Luggage? NO-->anyone who has a nose can smell it ○ Every drug has a smell. If I can smell it, a dog can smell it. ○ Always go back to what you knowingly expose to the public...if I can do it...the government can do it.

Other Exceptions That Justify Searches Beyond the Grab Area

exigent circumstances arising due to an arrest the need to perform a protective sweep to protect the safety of the arresting officer (Maryland v Buie (1990) The Court defined a protective sweep as a "quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers or others." the need to secure the premises during the time it takes to obtain a warrant (there must be probable cause to believe that the area contains evidence of criminal activity.)

Professor Christopher Slobogin's research indicates that lower courts have adopted a multi-factor approach to "search" issues

Those factors include: (1) the nature of the place observed; (2) the steps taken by the citizen to enhance privacy; (3) the degree to which the surveillance requires a physical intrusion onto private property (i.e., the location of the observer); (4) the nature of the object or activity observed; (5) the availability to the general public of any technology used by the police to conduct the surveillance; (6) the extent to which the technology enhances the natural senses; and (7) the extent to which the surveillance is unnecessarily invasive or disruptive.

Elements of a Valid Search Warrant

Warrant Requirements --Neutral and detached magistrates --Proof requirements --Probable Cause --(Particularity) --Oath requirements ---Writing requirements Limits on execution of warrants

What is a warrant?

Warrant is a document issued by a judicial officer, authorizing a law enforcement officer to make a search or seizure.

Warrantless Searches

Warrantless searches must pass the balancing test of reasonableness. Some kinds of warrantless search are: Searches accompanying arrests Hot pursuit Search of vehicles Plain-view searches Consent searches Stops and frisks

Warrantless Entry of the Home (part 3) Destruction or Loss of Evidence Murder Scene Searches

While the gravity of the crime is a factor in determining exigent circumstances, it is not a per se factor. In Mincey v Arizona (1978), the Court held that there is no per se exigent circumstances exception for the search of a murder scene. Mincey v Arizona (1978): The Court held that an immediate warrantless search of a murder scene is permissible to determine whether perpetrators or victims remain at the scene. However, the extensive four day search of Mincey's apartment was illegal, because there was no factual indication that there was an imminent risk of destruction of evidence during that time.

Searching Persons During the Execution of a Warrant

Ybarra v. Illinois 444 U.S. 85 (1979) An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. In order for the police to search persons during the execution of a warrant, the police must have independent probable cause to search the person ("a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person"), as well as some justification for conducting the search without a warrant, i.e., they must be able to point to an exception to the "warrant requirement." ○ Independent assessment of an individual to determine whether can search or not ○ Can't search all birds

United States v. White White (D) and a government informant, Jackson, discussed several illegal drug transactions in Jackson's home and car and in public. Government agents, through a listening device placed on Jackson's person with his permission, overheard the conversations. At trial, the prosecution was unable to locate Jackson and offered the testimony of the government agents to support the charges. Over objections, the court allowed the agents' testimony. White (D) was convicted. The court of appeals reversed, finding that Katz rendered evidence obtained through electronic surveillance inadmissible against the defendant.

a. Do you have an expectation of privacy that something you tell to someone else won't be told to something else? i. No ii. Assume whatever you say to anybody can and will become public knowledge iii. Will society recognize that Williams has an expectation of privacy that someone else won't say it? NO not reasonable 1) Williams has that expectation b. Issue: do we need a warrant to bug an informant or an undercover cop? i. NO BECAUSE IT'S NOT A SEARCH ii. There's no reasonable expectation of privacy c. Was anything at white's house? i. Yes d. Invited jackson into his space...so if he had illegal drugs all around his house and jackson saw it and told the police...would police need a warrant? No because he knowingly exposed it to the public e. Don't have expectation of privacy that false friend is government informant and will tell police f. Do we have a reasonable expectation of privacy and that gov. won't put bug in house and listen to convo? g. FALSE FRIENDS (Heading) i. Do we have expectation that friend won't be loyal and tell everything to the gov? 1) No 2) They can tell verbally or being wired ii. Can an undercover cop sit and be responsible for your convo? 1) Yes; not unreasonable 2) Not a search; no violation of 4th amendment h. The court concludes "one contemplating illegal activities must realize and risk that his companion may be reporting to the police" i. Limited to what we tell other people

Probable Cause to Arrest: Brinegar v. U.S. (1949)

§ "probable cause exists where the facts and circumstances within [the officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. § Offense has been committed or is being committed § Something has to take place in order to show crime being committed

• Confidential informant (Cis) ○ Who/what are confidential informants?

§ Confidential informants are people relied upon by the officer where either □ (1) the officer is unwilling to identify the source by name, or bring them before a magistrate or □ (2) the officer does not know the name of the informant (often called "anonymous informants") ® Know everything but not willing to give name- ® That person who police officer has relationship with...call them at any time and they'll tell them what's up

Factors Helpful in Defining Area Within the Immediate Control of the Arrestee

whether the suspect is cuffed or restrained; the physical characteristics of the particular suspect-a young, agile arrestee will have a more expansive grab area than an older, infirm arrestee; the ratio of police officers to suspects - the higher the ratio, the less likely it would be for the suspect to leap a long distance to grab a weapon; and whether the item searched is reasonably accessible - a locked safe may be very near to the arrestee, but it is not within the grab area under Chimel.

• The Fourth Amendment

words in ( ) are where issues arise under 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 upon (probable cause), supported by Oath or affirmation, and (particularly describing the place to be searched), and (the persons or things to be seized. ) § 8 possible issues § Why not searches and seizures? □ If those 8 not met, considered an unreasonable search and seizure § Oath or affirmation determines if warrants is applicable □ Won't be an issue normally § The cases have determined what all those things mean § If not met it, unreasonable search and seizures ○ The Fourth Amendment represents a compromise between the need of government officials to gather evidence and the right of citizens to be free from governmental intrusion § Public policy issue § Fourth amendment limitations on governmental investigations are equally applicable to the state and federal governments § Balance between gathering and right of citizens ○ Basic Fourth Amendment Analysis § This is where you plug in your case & info □ (1) Search by government? ® Yes ◊ Private persons ARE not government entity ◊ How do we know if governmental entity? ◊ Government employee--id that shows governmental employee ◊ If deputize you OR government asks you to search-->a government informant-->come in there with wires □ (2) Reasonable expectation of privacy? Standing? People? ® Plug in cases ® Now have to establish can assert fourth amendment claim via these two things ® Persons--where can assert standing? Own home where? Home has to be within the united states. Have to assert standing. ® Standing issue comes in where house located-->must be united states ® e.g. case where they searched his house in mexico; not under fourth amendment □ (3) Was there a warrant? ® Plug in everything...oath and affirmation, probable cause, places to be search ® Yes there was a warrant □ (4) Was warrant proper and executed correctly? ® Find cases that fit in there... ® If yes ® If no warrant or not executed correctly...move to 6 □ (5) RESULT: Search is valid □ (6) Police good faith? Inevitable Discovery? Independent Source? ® Good faith-->executing wrong warrant but have ecstasy pills on table...bad warrant...wrong address...but police had good faith thinking it was the right house ® Yes ◊ Search is valid □ No warrant (7) Warrant Exception: Incident to arrest, Auto Search, Plain view, consent, stop and frisk, hot pursuit/evanescent evidence ® Evanescent evidence-->easily destroyable-->police on hot pursuit for someone and goes into your house...you have drugs on table...no warrant needed.... ® If you hit a no on the government is wrong...fourth amendment exclusionary rule comes in...that's your conclusion for no □ 4th amendment applicable to states via the 14th amendment

Who are not entitled to counsel?

§ Defendants excluded from Sixth Amendment protection include □ Those who are charged with minor crime for which jail is not "authorized" penalty and □ Those charged with a minor crime for which jail is authorized but who receive only a fine as the actual penalty ○ Who is protected? § Argersinger v. Hamlin (1972) in misdemeanor or petty offense cases, counsel must be provided only if he defendant receives actual jail sentence. Court extended the right to counsel to these defendants because defendant was sentenced to jail time § Scott v. Illinosis (1979)--Court limited the rights to these defendants. In this case, defendant § What if the defendant is charged with a misdemeanor, found guilty, sentenced to incarceration, and the sentence is immediately suspended and he is placed on probation? Does he afford Sixth Amendment protection? □ a defendant who has not been afforded the right to counsel may not be sentenced to a term of incarceration even if the sentence is immediately suspended and he is placed on probation.

• Remedies for Unreasonable Search and Seizures Police activity not considered a search nor seizure

§ Do not have to adhere to any aspects of fourth amendment § Don't need warrant § Don't have to tell you everything § The officer has no obligation to explain it § Activity does not have to be reasonable

○ Katz v. United States ○ Katz (D) had been indicted for transmitting illegal wagering information over the telephone in violation of a federal statute. At trial, the prosecution introduced evidence of the defendant's conversations obtained by FBI agents through a listening device attached to a public telephone without a search warrant. Katz(D) objected to the use of the evidence as a violation of the Fourth Amendment. The trial court overruled the objection and the defendant was convicted. The court of appeals affirmed the conviction.

§ Issue of privacy § ****1st rule from majority opinion: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. □ How do we knowingly put our crap out in the world? ® Facebook □ Knowingly expose is the first test ® On the phone in the public ◊ How on the phone would you be exposing your convo to the public? ◊ Having convo in classroom ◊ How to make it private? ◊ Text it under the convo ◊ Take out the vowels ◊ Code ® Face to face convos with people ◊ Convo in elevator with other people if someone goes and tells that convo...we have to ○ What are we talking about in katz? § Telephone conversation § Put a device on phone § Public telephone...door was closed. Chance that public could read lips, glass booth-->can see through them. We could see guy having convo. § Where was the transmitter? □ On the outside of the phone booth ® Why was this important? □ The issue: protection of the person in the conversation ® Conversations goes under person's in chart ○ ***Two part test you use in addition to knowingly expose: §*** (1) a person must have shown a subjective expectation of privacy § ****(2) expectation must be objectively reasonable □ In katz... ® Subjective expectation of privacy? YES; closed door; talking to one person and didn't expect others to be listening to convo; only called the one person ® Didn't expect gov to tap convo; only called the one person ® Filter: there were three phone booths...gov. tapped two. How did they know which two to tap? Put third one out of service..they knew he'd use one of those two. ® How do we determine that this is not a white issue? ® Person he was talking to in katz gave no consent for another person to listen ® Another way to determine if convo was supposed to be private □ Would a reasonable person believe you should have this expectation of privacy in convo? ® As a law abiding citizen, no ® Due process-->we are to be freedom from governmental instrusion ® Also balance privacy v. governmental investigation ® Need for gov. to investigate v. right to privacy □ Objective-->when they tap our phone, we hope there's probable cause...some reasonableness § Is it necessary for gov to investigate illegal activity? □ YES because criminals § Always go back to balancing test § Katz had a reasonable expectation of privacy; individual he was speaking to had a reasonable expectation of privacy ○ The fourth amendment protects people not places ○ What a [person knowingly exposes to the public Is not the subject of Fourth Amendment protection. But what he seeks to preserve as privact, even in an area accessible to the public, may be constitutionally protected § What measures did you take the keep your convo private? 2. The lip-reader hypothetical is indeded to raise the important issue of whether the mode of governmental instrusion 3. Notes and Question 4 and 5 a. Subjective and Objective test i. The fourth amendment guarantees a citizen's right to be free of unreasonable searches and seizures 1) Government action constitutes a search when the action a) Intrudes

• Remedies for Unreasonable Search and Seizures ○ Policy activity considered a search or seizure

§ Must be reasonable □ Does not mean have to have warrant...but must have one of the exception

○ Mapp v. Ohio Three state police officers approached Mapp's (D) apartment searching for a bombing suspect and illegal gambling paraphernalia. When the officers knocked, Mapp (D) refused to allow them into her home without a warrant. Three hours later, the officers again approached the home, broke through the door, and entered. When Mapp (D) demanded they produce their search warrant, one officer showed her a piece of paper, which Mapp (D) seized and concealed in her shirt. A struggle ensued in which the police physically recovered the paper from Mapp (D). After placing Mapp (D) in handcuffs, the police searched through her belongings, recovering four books alleged to contain obscene materials. No warrant was ever produced. Mapp (D) was convicted of possession of lewd and lascivious materials under state law. On appeal, the Ohio Supreme Court held that while the search and seizure may have violated the Fourth Amendment, the court was not obligated to exclude the evidence at trial.

§ Necessary case--without her we would not have exclusionary rule for state court § General rule that says exclusionary rule is not applicable in state and federal criminal cases § There was a warrant...proper and executed correctly? □ No; not proper...no warrant was ever really produced...no facts that it described under oath and affirmation and described person to be searched etc. □ It wasn't police in good faith because they lied about it □ End of no...no guarantee under wolf...shocks the conscience ® Searched her bosom->would shock the conscience at this time-->turtle neck ® She called her attorney and wouldn't let her talk to her attorney ® Searching for bombing suspect but were looking at places like pill bottles etc. □ What was attorney's argument? □ This was the first case where the U.S. Supreme Court allowed the American Civil Liberties Union to argue the case as amicus curiae □ Why did the court allow the ACLU to join the case when the defendant and the state were already joined in legal combat? ® Mapps' attorneys originally appealed the case on the basis of the obscenity charge. When the ACLU filed an amicus brief, it added that the abusive search procedure should also present an opportunity to review the Whole decision--an opportunity it obviously felt would be well received by the court □ We now have a fundamental guarantee if evidence will be excluded if found violation of fourth amendment § LANDMARK DECISION □ Through Mapp evidence obtain in violation of the fourth amendment rights will not be used against a defendant in criminal trial □ The integrity of the court was at issue as well in that if the court permits prosecutors to use unconstitutionally seized evidence, the court would be neglecting or defying the constitution and judges would be acting as accomplices in the willful disobedience of a constitution that they have sworn to uphold. □ USE SEARCH IS "UNREASONABLE" IN LANGUAGE FOR WRITING § Sgt. Carl Delau knew Mapp and her former husband

○ Doorway arrests ○ You are ordered to open the door under a claim of authority. The officer knocks on the door and informs you that you are under arrest. What determines if a warrant is required?

§ Payton-->in home arrests; private § Watson-->public arrest § What determines this is if it's a private or public arrest □ Officer must be outside door to be public □ For private...officer and you should be inside § He opened door...public or private? § Doorway arrests □ Ordered to open door under a claim of authority and is arrested upon opening the door, in some courts this is considered as a private arrest and a warrant is required □ If officer remains outside the door and informs the d he is under arrest, the arrest is made public-->some jurisdictions § Watson-->public arrest...you don't need a warrant § What if you close door? Officer argues exigent circumstances...because he informed you of arrest and you closed door...claiming you are trying to resist arrest □ Advise client that when officer knocks on door under claim of authority and making arrest...just adhere at this moment to officer's request and step outside and close the door. ® At that moment, you are under arrest in the public ® Only way they can get into your home is consent or exigent circumstances ® If you let officer in, you are now consenting to let them search

○ Brown v. Mississippi ○ The Petitioners were indicted and charged with the murder of Raymond Stewart five days following his death. ○ The only evidence sufficient to convict the defendants was their own confessions. § The confessions were the result of continued physical coercion. One of the defendants (Ellington) was hanged by a rope by a sheriff's deputy (Dial). Each time Ellington was released, he was questioned about his role in the killing and each time he denied any participation in it. Ellington was eventually released, but within a few days, Dial returned to Ellington's home and arrested him. En route to the jail, Dial stopped, and this time Ellington was severely whipped. He was told the abuse would continue until he provided a confession acceptable to Dial. § The other two defendants, Brown and Shields, were subsequently arrested and beaten with a leather strap and belt buckle. They also subsequently confessed to the terms Dial demanded in order to stop the beatings.

§ Testimony § Why is this a investigatory failure? □ To the federal supreme court, there was a confession but without a confession where they admitted coercing the witnesses there was no other evidence that they committed the crime § How did these gentlemen confess to commit a crime? □ Beaten by county deputies; told to confess □ Told if they didn't confess, they would continue beating them □ Did they get on the stand and say the same thing? ® They did □ How do we know they were beat? ® Officers got on stand and admitted ® That was acceptable at the time § When we look at a coerced confession...does this inhibit our ability to have a fair and just trial? □ This case is about due process □ The question is whether the physical torture affects our due process under the 14th amendment ® It's about anybody who is physically tortured § Yes, this is a violation of the 14th amendment ○ Remedy: § Remanded for further hearings ○ Prosecutor sought justice and kept them charged with the crime ○ Role of prosecutor to seek justice and determine if crime was committed ○ Prosecutor could have let them go ○ State appointed attorney told them to take a plea and they took the plea and served their time ○ Physical torture eliminated by Brown • Brown: such a confession extracted by "brutality and violence" is not given voluntarily ○ Violates the fundamental right to fair trial procedures ○ Under heading of fair trial procedures ○ When we look at fair trial procedures we will focus on that confessions would not bring about fair trial; involuntary confession ○ Really not about investigation but about trial

At what time in process do you have right to counsel?

§ The Court has adopted a two-part test for identifying those events that are part of a "criminal prosecution" where counsel's assistance is needed □ The event must occur after adversarial judicial proceedings have begun ® Test: have you appeared before a prosecutor or judge? ® Is it an arraignment? ® Court has held that the right attaches at post-indictment lineup and not at pre-indictment line-up ◊ As long as there an indictment □ The event must be a critical stage in the trial process ® Trial like event--consider critical stage ◊ Are you being confronted by a prosecutor? Confronted by system in some way that if you don't have lawyer present than it may reduce trial to formality? Are you in a situation in which you don't have your lawyer with you and being confronted by system in some way and if a result of that can make a trial moot...that's a time to have access to a lawyer ◊ e.g. preliminary hearing, a post-indictment line-up, a guilty negotiation, and a sentencing hearing; the constitution guarantees the right to counsel at each of these proceedings ◊ Anytime the outcome can influence the result in trial ◊ Not critical==photo id proceedings, handwriting exemplar proceedings, probation revocation hearings, and administrative detention of inmates

Gerstein v. Pugh

• Can an officer make an arrest based on probable cause? Yes ○ The determination need not take place in an adversial proceeding, and so counsel need not be appointed, but the determination must take place within a reasonable time after arrest (within 48 hrs. absent a bona fide emergency or other extraordinary circumstances) ○ Are you required to have an attorney present at probable cause hearing? § No; preliminary § Attorney would file motion to supress or motion to exclude all evidence; motion to dismiss Police have the right to arrest without a warrant if they have probable cause, but the reasons justifying a warrantless arrest go away once the arrestee is in custody At that point, the 4th Amendment requires that the government obtain a neutral determination of probable cause from a judge before the government can continue to restrain the arrestee The determination need not take place in an adversarial proceeding, and so counsel need not be appointed, but the determination must take place within a reasonable time after arrest (within 48 hrs. absent a bona fide emergency or other "extraordinary circumstances.") County of Riverside v. McLaughlin (1991)

Nix v. Whiteside ○ Whiteside (D) went to Love's apartment to purchase marijuana. Whiteside (D) and Love argued over the marijuana. According to Whiteside (D), Love started to reach under his pillow and move towards Whiteside (D), at which point Whiteside (D) stabbed and killed Love. In discussions with his appointed counsel, Whiteside (D) said that, although he had never actually seen a gun, he was convinced that Love had a gun. Just before trial, Whiteside (D) told his lawyer that he had seen ''something metallic'' in Love's hand. Whiteside's (D) lawyer advised him that testifying to this would be perjury and that he would withdraw from the representation if Whiteside (D) insisted on perjuring himself at trial. The lawyer also indicated that, if Whiteside (D) actually gave the false testimony, the lawyer would have to inform the court of the perjury. Whiteside (D) ultimately testified at trial, did not perjure himself, and was convicted.

• Client told attorney that he wanted to say on the stand that he saw something metallic ○ Worried if he said he didn't see a gun that he would be screwed ○ If he saw a gun could claim self-defense • Would it have been necessary to see something that was or looked like a weapon in the victim's hand? ○ Attorney said ok if reasonably believed there was a gun; even if he was wrong...mean he won't have valid self-defense claim? No as long as believe in circumstances was reasonable • Client concerned no one will believe him unless they think he saw something • Attorney says it would be perjury • Here it is not just that he remembered here it is he said he already didn't see anything but not wants to change it ○ In a gray area; attorney's best they can get is a reasonable belief; what story can I support in good faith given all the info I have? § Doesn't the attorney have a responsibility to help his client though? Where does that balance fall between responsibility to client and responsibility to acting ethically □ Responsibility to the court--to the profession and some responsibility to the client but there's a conflict between what client wants and what attorney's responsibilities are to the profession & to the court; □ Who controls what I do? ® What position are you in when you have to tell the client...I can do so much for you but there's a limit? ◊ Withdraw or disclose ◊ This lawyer disclosed ◊ Doesn't that counter to his client's interest? It's for your client's interest...if he goes up and perjures himself there's a possibility of an additional charge.... ◊ Professor's point: my effectiveness doesn't depend necessarily on doing whatever the client wants...is it in part? ◊ Are the client's wishes not important to whether they received effective counsel? What your client wants matters ◊ The client has the ability to set goals but as far as how we achieve those goals it's our responsibility ◊ We have to live under the limits on what the law places on us • Who is in charge? ○ Even if represented by counsel, defendant has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, take an appeal ○ Lawyer has full authority to manage conduct of the trial and has authority to manage most aspects of the defense without obtaining client's approval • Basic trial right: counsel must consult with the defendant and obtain consent to the recommended course of action • If we don't add that adjective "effective" into counsel...have I really received counsel if it's not effective? ○ According to the law, no. Counsel should be effective. As far as what's effective we can differ at what's effective

Gideon v. Wainwright ○ Gideon (D) was charged with breaking and entering with intent to commit a misdemeanor, which is a felony offense in Florida. Gideon (D) asked the trial judge to appoint counsel for him. The trial judge refused, stating that Florida law allows for appointed counsel only in capital cases. Gideon's (D) case went to trial before a jury, during which Gideon conducted his own defense as best he could. Gideon (D) was convicted and sentenced to five years in prison.

• Gideon requested counsel; but judge wouldn't give it to him...only if capital charge • How is it possible that if the 6th amendment guarantees the right to counsel in a criminal proceeding how is it that florida can tell him he can't have an attorney? ○ Different between state & federal; florida hadn't adopted it • How did Gideon do in court: ○ "about as well as he could do for a layman" ○ Opening statement ○ Cross examination ○ Presented his own defense ○ Maintained his right to remain silent ○ Closing argument • We really are a nation of multiple sides; federal government is limited ○ The 6th amendment only binds the federal government; the 14th amendment must apply to the state ○ Unless somehow, someway that those guarantees apply to the states as well...they are meaningless • Is right to counsel a fundamental right? Is it essential to a fair trial? ○ Betts Court said no § Is right to counsel a fundamental right? If it's fundamental what does it mean...it has to be applied. § If you look at the 14th amendment we spend a lot of time discussing due process □ 14th amendment only becomes relevant □ Supreme court in 1873-->the states can't do anything to infringe upon the privileges and immunities of citizenship-->supreme court limited that in 1873 □ We had to find another way to look at it □ As a matter of due process it's inappropriate for government to put you in jeopardy of losing life, liberty or property regarding to due process...how do we decide what's fundamental? The Betts court said effective counsel is not fundamental ○ State and federal constitutions place great emphasis on procedural and substantive safeguards • Is him having a lawyer a fundamental right? ○ The government spends lot of money on their counsel, if there is no counter than the adversary system fails § But still does not say what is fundamental • How do we determine if a right is fundamental? ○ Either enumerated in constitution ○ OR § 2 part test: § Deeply rooted in tradition § And ordered in the scheme of liberty • Application to State Court proceedings ○ Betts (1942): Roberry Trial in Maryland: Sixth Amendment applies only to trials in federal courts. Appointment of counsel in state court proceedings not a state right. ○ Gideon (1963): watershed case; reversed Betts; fundamental right and essential to fair trial; any person, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him. • Sixth Amendment ○ "In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defence." § Protections of the the amendment right to counsel brought to the states through the 14th Amendment due Process clause ○ It's going to end up not mattering whether you're in state of federal court with most rights we'll be talking about in this course ○ Criminal procedure and con law kind of go hand in hand

Payton v. New York

• Home & homeowner • Is a warrant required for an in-home arrest? • Did not request an arrest or search warrant • Did officers have probable cause to obtain a warrant even though they didn't? • Probable cause rule: officers did have probable cause to obtain a warrant; totality of the circumstances-->look at what info they had that made them reasonably believe he was possibly there? Identified as suspect; given tip that he was residing in that apartment ○ Two part test--> § (1) basis of knowledge-->how they got it § (2) whether or not the informant was credible □ Another step to get probable cause-->collaborate....could have waited outside apartment to see if he was there § What did they do with their collaboration? Went directly to apartment and knocked on door; when no one answered...went in § Decided not to wait for warrant § Before payton, in NY this was allowed § They adhered to their guidelines § Why are we here? □ Fourth amendment's language...right of persons to be secure in houses □ Is mr. payton's protection violated if enter house without warrant? ® Katz...balancing objective vs. subjective □ Is payton home? No ® Walk in and find a shell casing ® Seized it and used it as evidence ® He was convicted □ Lawyer arguing that because they didn't have a warrant; evidence should be suppressed □ Is this a violation of his fourth amendment rights? ® Yes § What do we take from this case and main rule...when have an issue with home encounter and dealing with arrest... □ Do we have a warrant? ® If no...may have an exception □ Probable cause is also an exception □ Is this about the home or person? Person ® Illegal search or illegal seizure? § (1) did they go to home to search or arrest him? Arrest him □ Doesn't feel free to leave-->seizure □ If you go into a home to arrest a person without a warrant...seizure □ In home and picking up stuff...search □ Originally violating seizure § When looking at home entry....major aspect of case to determine whether your in a home □ Uniform under payton: you need a warrant to seize unless exigent circumstances □ The court held that the 4th amendment prohibited the police from arresting the defendant in his home without a warrant in the absence of exigent circumstances □ The warrant requirement in payton is not intended to protect the citizen.... □ Wasn't about the illegal arrest; but illegal search • Warrantless Arrests ○ Payton Violation Constitutes Illegal Search, Not an Illegal Arrest § It follows that when an officer has probable cause and arrests the d in his home without exigent circumstances....

Warrant Clause: When Are Warrants Required? Search Warrant is Required for an Arrest in the Home of a Third Party

• In order for 3rd person to be arrested at house, need search warrant not arrest warrant unless they can truly establish with probable cause that she is there...an arrest warrant will do • If they have a search warrant, they can search for 3rd person in house; have to establish with probable cause • Arrest warrant only allows them to knock on door; can't come into house with arrest warrant unless you let them-->all they can say "she's not here" and close door • Search warrant gets them inside

Powell v. Alabama ○ Several non-resident black defendants were charged with rape in Alabama state court. The court appointed all the members of the state bar to represent the defendants for purposes of arraignment. Issuing no order appointing counsel after arraignment, the court assumed counsel would continue representing the defendants at trial. The defendants were arraigned and pleaded not guilty. The defendants did not personally retain counsel, and they were not given an opportunity to contact family and friends to arrange for counsel. Trial commenced six days later, and a Tennessee lawyer, Mr. Roddy, indicated to the court that he would like to participate in the defense with a member of the state bar appointed by the court. No local counsel was appointed, although on the morning of the trial, a local attorney, Mr. Moody, came forward to assist Mr. Roddy for purposes of that day's trials without reviewing the evidence or questioning witnesses.

• Is an arraignment a critical stage? Yes; where people plead guilty or not guilty • Judge appointed all the members of the state bar to represent the defendants for purposes of arraignment • Defendants pleaded not guilty ○ One of them called the white woman a liar • Did they have a lawyer at trial? ○ Mr. Roddy was a Tennessee lawyer--he appeared--said he wanted to participate in the defense ○ Mr. Moody came forward on the day of trial to assist Mr. Roddy § Said he was going to help Mr. Roddy § Didn't say he was going to help them § They had lawyers at this moment • What is a lawyer going to do with client? ○ Develop ○ Interview them; gather info; do investigation ○ Did Mr. Roddy and Mr. Moody have any info at the time when trial started to present a proper defense? § NO § What is our trial failure? □ If you have a right to counsel, it's bigger than just having someone to represent you at trial ○ What must US Supreme court look for to determine if they are going to overturn a decision? § If constitutional rights were violated § We aren't looking whether they did it or not § If we are looking at a fair and just process...what was unfair about this process? □ Counsel was inadequate; violates 14th amendment ® State charge ® When you see a state charge-->looking at 14th ® Federal-->looking at 5th • The court does not express doubt about the guilt of the defendants. For example, the court noted "however guilty defendants, upon due inquiry, might prove to have been" • Thus, it is fair to assume that the procedural failure to provide counsel was enough to reverse the convictions under the extreme facts of Powell • The court concludes that the trial court failed to make an effective appointment of counsel • Decision only relates to these facts: ○ 9 uneducated black men ○ Capital case • What was the quote that let us known the specifics of this case that demonstrate that everyone is deserving of effective counsel? ○ "even the intelligent and educated layman has small and sometimes no skill in the science of law" pg. 26 • Implications ○ What right to counsel does this language suggest? § Right to counsel is an effective right to counsel ○ To what class of crimes do these comments apply? § Capital crimes

Trial Failures

• Stories of Scottsboro. Goodman's intense account of the actual events help demonstrate the awesome stakes for those caught up in the criminal process • These women lived amongst the black • Women accused 9 men of rape • Black men threw white men off the train ○ Black men beat them off and threw them off train--that was unheard of; ain't no way they were supposed to do that. They were damn sure they were going to get lynched • Officers were waiting for them • Anytime someone says they are raped, you are to take it at face value and investigate it • What was the investigory face by the individuals? ○ They were believed. Why were they believed? Said they were raped and pointed out 6 of the men ○ There was no physical evidence that they were raped ○ All 9 were charged ○ Other lady said she didn't see anything; but couldn't identify who raped her in trial § 4 of them came from Chattanooga § 5 of them came from Alabama ○ Williams thanks God for those two girls; without this case, it would be a long time coming before right to counsel • What's unique about these nine black men? ○ None of them got hung § What saved them? The National Guard showed up to watch the jail ○ They made it to trial

§ Two-part aguilar-spinelli test

□ (1) Basis of knowledge: personal knowledge of the informant ® Looking at how does this informant come upon the info? Did she buy the drugs? Or did she hear someone was selling the drugs? Or second hand info? ® Even if the info comes from a reliable source, the source may not have personal knowledge of the facts attested ® Some of the underlying circumstances relied on by the informant in concluding that the facts are as he claims they are ◊ Must be specific ◊ "so and so...provided info...who is a blah blah blah" □ (2) Veracity/Reliability ® Reliable because she's a professor who has taken an oath; been apart of sting operation...never steered wrong ® The person providing the info upon which the warrant is based must be reliable and credible. ® How do police officers become reliable? ◊ Everytime you tell me where drugs are...they are there ◊ What they say is reliable...specifics of their info is accurate ® May not be reliable because of personal motivation...most of the time criminal informants are other criminals § Brand Nubian's Probable Cause Listen to info presented about not having to commit crime to establish probable cause

§ Wolf v. Colorado-->state court

□ Fundamental right of the guarantees for the fourth amendment? ® We do have a fundamental right for the protections of the 4th amendment ® But do NOT have a fundamental guarantee that if its violated evidence will be excluded UNLESS in federal □ No fundamental guarantee to remedy of evidence being excluded at this time □ Only option at this time-->sue officers for trespass or conversion or replevin (give it back) □ 16th states following this ® How can be fair and just in one state and not in another state? ® You can have different laws in different states ◊ e.g. marijuana § Shocks the conscience □ After wolf, the court decided that the exclusionary rule provided protection against the police activity that "shocks the conscience" ® Difference between wolf and rochin ◊ Swallowed evidence; tried to force mouth open to get it out; had stomach pumped ◊ No warrant ◊ Why did the court say that shocked the conscience? ◊ Just broke into house; invaded privacy ◊ In what instances will they now exclude ◊ Held that evidence obtained by police action deemed egregious is excluded ◊ After rochin, the exclusionary rule is constitutional required remedy for evidence obtain in violation of due process by egregious conduct ◊ If not egregious still under wolf

○ Hotels and Motels § You are homeless. Eddie Murphy walks by and gives you $300. You decide to get a room at the Sanford Arms Motels; it's 25 a night. You have been there for 4 nights. You are implicated in a murder. Must the police have a warrant to search your hotel?

□ Private □ Establishes that this is his home □ If you establish hotel room as home, the police need a warrant ® But have to establish it as your home ® Caselaw provides for the ability to say if you establish it as your home ® If it's just a standard stay...1, 2, 3 day stay...not establishes as your home ® This is an extended stay; check out and check back in (so not establishing self as home) ® Standard governing guideline: your hotel has a dominion and control over all rooms; allow them to come in and search rooms ® Able to establish as home better argument ® The protections in payton apply with equal force to a properly rented hotel or motel room during the rental period. The person must assert rightful possession of the home. ® It's all about time frame; 1st day...haven't established rightful possession ® Courts haven't given a definite time period; they'll look at totality of circumstances ® **intent to remain** ◊ Get mail sent to it etc. ◊ Williams scratches it off of hotel or motel; don't sign rights away ○ e.g. in central park have box; everyone knows its your box; you go to it everyday...police think you have weapon in box; that's your box § Establishes residency in his box § Just because person was homeless and in public place, doesn't mean didn't establish as a home ○ e.g. courts look at whether it's a home or whether it a car?

The criminal Process: Failures, Choices, and Legitimacy

□ The introduction attempts to recreate just a bit of the intense feeling against the new central government that gripped the Anti-federalists and led, of course, to the Bill of Rights □ Regulation of state criminal processes was born out of state failures to provide a fair and just process ® Fairness and just □ What determines what is fair and just? The constitution--14th amendment--due process ® Who provides us with due process? The state ® Under the 5th amendment the federal government provides us with due process ◊ Start with that source of understanding □ So when we talk about 14th amendment...we have to look at who is talked about...who are the people? ® All persons born and nationalized in the united states. Who is a person and who are citizens? ◊ Were black people citizens? No ◊ Everyone is here fits within the constitutional provisions of the 14th and 5th amendment

§ Weeks v. United States--> Weeks (D) was arrested without a warrant after police officers entered his home with a key found outside the premises. The officers searched Weeks's (D) bedroom and confiscated various papers and lottery tickets. After delivering the evidence to a federal marshal, the marshal also entered the home without a warrant, confiscating additional papers. An indictment was issued against Weeks (D), including a count of using the mails to transport illegal lottery tickets in violation of federal law. Weeks (D) objected to the search and requested return of the items. The objection was overruled, and Weeks (D) was subsequently convicted.

□ Was there a search by the government? Yes; state & federal] ® State or federal charge? Federal charge □ Issue: papers ® You know where you are by what's introduced as evidence...what were introduced against him? Lottery tickets & mail □ Why was that a violation of the law? Because of the statute that was in place □ Was there a warrant? ® No □ Warrant exceptions? NO EXCEPTIONS ® Exclusion of evidence ® This supreme court now provides us with precedent ® RULE: federal criminal gov. employees proceedings evidence will be excluded if violate the fourth amendment ◊ If you're a state employee what do you want to do? ◊ Give evidence to fed gov-->silver platter doctrine-->BUT state employee CANNOT hand over evidence--state police cannot do that □ Court held that the fourth amendment bars the use of evidence unconstitutionally seized by federal law enforcement officers ® The supreme court created an exclusionary rule to operate ONLY in the federal courts The exclusionary rule provides that: evidence obtained in violation of a defendant's fourth amendment rights must be excluded from trial in federal

Steagald v. United States

○ "not in my house" ○ Search warrant to get into my house § Protected by fourth amendment ○ Search warrant-->only get based on probable cause with info presented in warrant § Search anywhere they can reasonable believe you be located □ e.g. dryer, washer machine, under bed § Arrest warrant not sufficient If the suspect is temporarily in the home of another § Officer may not search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant § Stegald v. United States--courts held, in the absence of exigent circumstances or consent, a search warrant must be obtained to look for a suspect in the home of a third party if the suspect is not a resident of the premises. That is, a magistrate must determine whether there is probable cause to believe that the suspect is located in the home of the third party ○ Rationale of steagald--the court reasoned that an arrest warrant would • If they ain't looking for you, don't let them in Rationale of Steagald - The Court reasoned that an arrest warrant would not protect the privacy interests of a third-party homeowner, since the arrest warrant was not based on any judicial determination that there was probable cause to search for the suspect in the third party's home. Arrest Warrant Not Sufficient if the Suspect Is Temporarily In the Home of Another Is the Suspect Living at or Visiting the Premises Who Has Standing to Object to the Lack of a Search Warrant? Can a Visitor Object to the Lack of an Arrest Warrant When Arrested in a Third Party's Home? Search Warrant is Required for an Arrest in the Home of a Third Party Is the Suspect Living at or Visiting the Premises It is important to determine whether the suspect lives at the premises, in which case an arrest warrant is sufficient, or whether he is merely visiting there, in which case a search warrant is required. Courts have looked at how long and how consistently the suspect has stayed at the premises, whether the suspect is responsible for any utilities, and other indicia of permanent residence.

• What is a house?

○ A dwelling place where people have personal possessions ○ Overnight guest has standing to assert 4th amendment rights--> ○ Police only base it on strategic things...no specific...what are you going to do to make sure an overnight guest doesn't have dominion or control? § No key § Limit personal items § Make sure person keeps clothes in bag; not give them a drawer § When they have standing they can let police come in and give consent to search and you can't say a thing. • Why do houses receive specific protection against unreasonable searches? • Should houses receive special protection against unreasonable searches? • When is an arrest made in the home?

• Evolution of due process

○ Court first relied on Due Process to ban the courtroom use of confessions obtained by physical torture ○ Enlarged this ban to prohibit the use of confessions obtained by psychological coercion § 3 things court will look to determine if been psychological coercion: □ (1) actions of officers □ (2) characteristics of defendant □ (3) circumstances surrounding the interrogation

• Spinelli v. United States (1969) ○ Man was using two phones for gambling

○ Did this person make any wages with spinellI? No ○ See Spinelli using phone? No ○ What is this person really saying? "I see someone going into this house that has two phones" § Is that a fair probability that a crime is being committed or has been committed? NO § Charged with gambling § Is having two phones in an apartment a crime? NO § In 1969, very very luxious to have two phones § based on this info...what did officer do when got this info from informant? Trailed spinelli; contacted telephone company; □ Didn't establish anything different than what informant gave them ○ Supsicion for crossing state lines § Suspisicon that he's a gambler...but they have to have more ○ Where two part test comes in ○ Spinelli--Corroboration § A defect in one or both of the prongs could be remedied if □ The police obtained significant independent evidence corrobating the info related by trhe informnant ® However the corroborative evidence had to be substantial, or corroborative of suspicious facts in order to shore up a defect in one of the prongs. § What could they have done? □ Could have wired someone and told them to go place a bet then after place bet observe him go into place; pay money...get him to do it for a period of time § What type of warrant did they seek? □ Search warrant □ They are seeking information to seize § With corroboration if there's a defect in one of the two prongs □ A strict and reliable corroboration will stand in its place

• What is probable cause?

○ Establishing probable cause requires showing of something more less than mere suspicion but something less than beyond a reasonable doubt § Probable cause requires a showing by the Government of a fair probability on each of the points that the prosecution must establish in order for a warrant to issue □ Standard you use □ Use this term consistently...fair probability standard. □ Gov doesn't have to be exact but have to be more than suspicious □ Could have supsicious but must be reaosnable and limited on what you can do

• Duncan v. Louisiana ○ Duncan (D) was charged with simple assault in Louisiana state court. Duncan (D) requested a jury trial, which was denied because the Louisiana Constitution provided for jury trials only in felony cases. ○ Duncan (D) was convicted and sentenced to sixty days in a local prison and a fine.

○ Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting ○ Why is a jury trial a fundamental right? § Essential to a fair and just trial ○ Jury criteria § How become members of the panel? □ Chosen by attorneys § What do you know about the judge? □ You didn't pick him ○ Louisiana not obligated to have jury trial; 6th amendment only applies to federal; don't consider it fundamental ○ The law changed-->Under the 6th amendment, all criminal defendants have a constitutional right to trial by jury. ○ The Court held that the Sixth Amendment guarantee of trial by jury in criminal case was "fundamental to the American scheme of justice," and that the states were obligated ○ Rule of law: The Fourteenth Amendment of the constitution guarantees a right of trial by jury in all criminal cases § Exception: Petty crimes, defined as those punishable by no more than 6 months in prison and a $500 fine, were not subject to the jury trial provision □ Misdemeanor cases very rarely have jail sentence

Four Elements of Probable Cause

○ Helps us under public police to determine how do we look at info and what's the benefit § Reasonable to whom § Strength of connection § Comparison to other standards § Quality of info We will find info in a variety of forms particularly from case law and state statutes

• The Right to Appointed Counsel for Indigent Defendants

○ Johnson v. Zerbst (1938) § Indigent defendants have the right to appointed counsel in all federal prosecutions in all serious criminal cases (at least all felony cases) □ Has to be federal prosecution for serious crime

• Carroll v. United States (1925)

○ Moonshine ○ Issue: they were in a car § A car has less protection than a home ○ Definition of PC: the facts and circumstances within their knowledge and if which they had reasonable trustworthy Info were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.

• When does right to counsel attach?

○ Prior to trial, at any critical stage of the criminal prosecution, after the initiation of adversary judicial proceedings (Kirby v. Illinois)-->6th amendment § Watch for: the difference between right to counsel under 5th amendment and what that means and right to counsel under 6th amendment and what that means; □ If it's not adversarial yet-->no sixth amendment

• The Norms of the Criminal Process

○ Reliability ○ Accuracy ○ Fairness ○ Legitimacy ○ Efficiency ○ Limiting Government • Reliability & Accuracy ○ Distinction between reliability and accuracy--to gauge accuracy requires knowing the truth but we lack the epistemology to uncover truth ○ Reliability describes an outcome that meets certain truth conditions the process imposes on outcomes--e.g., the right to confront witnesses, to have a lawyer, and to require the State to prove guilt beyond a reasonable doubt § Do we want a system gauged more towards accuracy? • Accuracy & Fairness ○ Accuracy may have nothing to do with fairness • Fairness & Legitimacy ○ Fairness and legitimacy overlap but are distinct • Efficiency & fairness ○ Efficiency is largely hostile to fairness • Limiting government ○ Limited government may have nothing to do with any of the others • Courts struggle with these concepts • The Norms Post-September 11 ○ How much privacy should our society be prepared to sacrifice in exchange for greater security? Do we already sacrifice too much privacy or should we be willing to give up a good deal more if necessary? • Sources of Law ○ Constitution § State and federal ○ Statutes § Federal title 18--Crime and Criminal Procedure § Federal title 21--Controlled Substances Act § Arizona Revised Statutes Titles 8 (juvenile) 13 (criminal code) ○ Rules § Federal Rules of Criminal Procedure § Arizona Rules of Criminal Procedure • Prosecution Systems ○ Multiple jurisdictions, major and minor crimes ○ The gap between law and practice ○ The roles of prosecutors and defense counsel in various stages of a criminal prosecution (stages from pre-arrest investigative stage to the post-appeal stage of "post conviction" remedies") • Concerned about procedures in criminal procedure • Pre-Arrest Investigation ○ Arrest ○ Booking ○ Fingerprinting & Processing ○ Charging § Complaint] § Indicment ○ Client's perspective...looks different ○ Initial appearance & indictment ○ Apperance before a judge ○ Appointment of counsel ○ Pre-trial motions § State evidence § Defense-suppression ○ Jury selection ○ The trial ○ Jury deliberation ○ Sentencing § Death penalty § Imprisonment § Jail § Probation § Fine ○ Appeals § Direct appeal § Death penalty appeals

• The Exclusionary Rule--4th Amendment

○ The exclusionary rule provides that: evidence obtained in violation of a defendant's fourth amendment rights must be excluded from trial in both federal and state courts

Illinois v. Gates Husband & wife selling drugs; anonymous letter to Police telling them that they sell; police follows them; it was the hairdresser who told on them.

○ Totality of the Circumstances (Rule) § A common sense person (WHO?) looking at the totality of info/,considering the fact that some of it was hearsay,/and make a common sense determination/ of the reliability and sufficiency of the information/ supporting probable cause. □ Is the officer making a determination of probable cause on their own? OR □ Is magistrate looking at affidavit and making a determination of probable cause? □ Common sense person-->officier, magistrate, regular everyday person, reasonable person ® Looking at affidavit...being neutral; taking self out of "I know the law." stepping back and saying "Is there a fair probability that I am seeing here a crime...or evidence of a crime?" ◊ Not the legal minded person Police officer has a great sense of smell when it comes to marijuana. Officer making determination as "anyone walking up here can know this is weed." ○ Did this person make any wages with spinellI? No ○ See Spinelli using phone? No ○ What is this person really saying? "I see someone going into this house that has two phones" § Is that a fair probability that a crime is being committed or has been committed? NO § Charged with gambling § Is having two phones in an apartment a crime? NO § In 1969, very very luxious to have two phones § based on this info...what did officer do when got this info from informant? Trailed spinelli; contacted telephone company; □ Didn't establish anything different than what informant gave them ○ Supsicion for crossing state lines § Suspisicon that he's a gambler...but they have to have more ○ Where two part test comes in ○ Spinelli--Corroboration § A defect in one or both of the prongs could be remedied if □ The police obtained significant independent evidence corrobating the info related by trhe informnant ® However the corroborative evidence had to be substantial, or corroborative of suspicious facts in order to shore up a defect in one of the prongs. § What could they have done? □ Could have wired someone and told them to go place a bet then after place bet observe him go into place; pay money...get him to do it for a period of time § What type of warrant did they seek? □ Search warrant □ They are seeking information to seize § With corroboration if there's a defect in one of the two prongs □ A strict and reliable corroboration will stand in its place

Under "Was there a warrant?" chart

○ Under the fourth amendment, no warrant shall issue, but upon probable cause, supported by Oath or affirmation ○ Must analyze probable cause before getting to description of place, person, and thing to be searched ○ Arrest warrant & search warrant must be particular ○ In order to determine whether probable cause for warrant...use totality of circumstances § At..."was the warrant proper?"-->did it establish probable cause • Also in section of...if there was not a warrant...because one of the exceptions is "PC" e.g. cop comes up to house and smells marijuana coming from house, enough probable cause without warrant.

• Lopez ○ (tape recorders)

○ Undercover agent...was he acting like an agent? Having convo at place of business; tape recorder on him. Not telling him he's an officer or that he's recording. It's not a search; no warrant. Therefore, no fourth amendment protection

• Powell--the Role of Counsel

○ Value of legal counsel and the appointment of a primary defense lawyer § Limited to circumstances of the nine young, illiterate, black men § In this capital case, where the defendant is unable to employ counsel and is incapable adequately ○ Assign counsel whether they requested it or not Powell does not give us a right to counsel per se; only for those circumstances

• Sources of Info ○ Which of the following sources info are most reliable? Most testable? § Victims § Other witnesses § Anonymous sources § Confidential informants § Police officers □ Observation □ Facts derived from investigation ® Individually ® Fellow officers

○ Victims-->depend on how far out they were questioned; questioned sooner...more helpless ○ Other witnesses-->may not be as credible; may be ○ Police officers--some observation is great; some isn't • Make argument one way or another • Most testable?? -->anonymous source and confidential informant ○ How do you test reliability of informant? § Giving us info; test them because we can observe what they are saying

• Lee & White ○ Transmitters

○ Was talking confidentially and indiscreetly with one he trusted and was overheard ○ Agent carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequently ○ Former friend of on lee; agent had transmitter on him § Agents located outside ○ White-->agent was in closet ○ Position different from white & lewis-->located outside laundry room ○ No search warrant needed to put transmitter on on lee's friend ○ No search & seizure

• Hoffa ○ (false friends)

○ Wasn't any recording ○ If you go and write it down after you hear it... ○ Anyone whether working for police, can report on someone without violation of fourth amendment rights. No search or seizure

• The Bill of Right and the Fourteenth Amendment: The Incorporation Story

○ What are we talking about? § We are talking about liberties--as in the "liberty" that the due clauses protect § Almost none of these liberties appear anywhere in the Constitution; rather, the great majority are deemed to be fundamental rights that the Constitution implicitly protects □ e.g. abortion § The result of these rights;' status as fundamental is that the government must meet a high standard to interfere with them □ Doesn't mean the government can't take them away; you get to put people in jail; you can take property away § The rights that we will discuss come not only from the Due Process Clauses, but also from the 14th Amendment's Equal Protection Clause (and in some instances from other Constitutional provisions) § The main distinction between Due Process and Equal Protection is the way in which we will describe the arguments □ Due process: does a sufficiently important purpose justify the government's interference? □ Equal protection: does a sufficiently important purpose justify the government's discrimination as to who get to exercise the right? • Incorporation ○ The protections listed in the Bill of Rights only protect against the federal government's activity ○ Under Incoporation theory, virtually all • Incorpoation jurisprudence encompasses four main theories ○ Selective incorporation--review Bills of Rights provisions on a case by case basis • Everything in Amendment 1-8 incorporated except ○ 3d amend ○ 5th amend--right to grand jury criminal indictment--expressly held not incorporated with states ○ 7th amend--right to civil jury trial--not incorporated ○ 8th amend--prohibition against excessive bail and fines--no ruling from the court to date § Except for these 4...all apply to states through 14th amendment

Rule of right to counsel

○ What rule? § The right to counsel includes not only the right to retain one's counsel of choice if one can afford it, but also the right to have the state appoint counsel if one cannot afford it. ○ What crimes? § Court rules that indigent defendants also have a right to appointed counsel in all state felony prosecutions □ What about misdemeanors? Probably not as worried about having counsel; may not be as critical ○ Which lawyer? § No constitutional right to appointed counsel of choice. The Court allows State and Federal courts to decide whether to take the defendant's preferred choice of counsel into account when making decisions. □ Supreme court rejects the idea that a defendant has a Sixth Amendment right to a "meaningful attorney-client relationship" with appointed counsel. Morris v. Slappy (1983) ® Not entitled to best lawyer...just competent

• Lewis ○ Conceal identity

○ Who, how transcribed, where, ○ No warrant to search and seize is required in such circumstances, nor is it when the government sends to a defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused. ○ Took place at Lewis's home § Expectation of privacy Invited the officer into his home