Criminal Procedure

Sentencing

Sentencing · If an increase in the severity of the sentence is based on an aggravating fact, the jury must make a finding of that fact beyond a reasonable doubt. · Juveniles may not be sentenced to life without the possibility of parole. · A juvenile offender may not be sentenced to capital punishment. Death Penlty Deathe Penalty is not Cruel and Unusal as long as there are procedural safeguardso prevent arbitrary or discriminatory sentencing You cannot excecute under 18 at the time of the crime or is mentally challenged

6th Amendment

Sixth Amendment Right to Counsel · The initiation of the formal adversarial process (formal charges, indictment, arraignment, or a preliminary hearing) triggers the Sixth Amendment right to the assistance of counsel during all critical stages of the adversarial process. 1. Critical Stage: Includes the deliberate elicitation of statements, a physical identification proceeding, the preliminary hearing, and trial. · This means that it violates the Sixth Amendment for the government to do any of these "critical stage" events without the presence of the defendant's counsel absent a voluntary and intelligent waiver. · However, this protection only applies once the "suspect" becomes a "defendant" as the result of the formal adversarial process starting, and only in relation to the crime that he or she is charged with. 1. This is an important difference from the Miranda right to counsel. Right to Counsel Approach—The deliberate elicitation of a statement from a defendant (someone who has been formally charged) is inadmissible unless counsel was present or police obtain a knowing and voluntary waiver. Sixth Amendment Right to Counsel Trigger: Direct or surreptitious police questioning of a defendant without the lawyer present or a valid waiver. Test: Was counsel present? If not, did the defendant waive the right? EXAM TIP: It is useful to distinguish a "suspect" from a "defendant." A suspect is an individual suspected by the police of having committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial process—when they are formally charged and the prosecutor is now involved in the case. A "suspect" has no Sixth Amendment protection; a "defendant" does, but only for the crime for which they are a defendant. In other words, the Sixth Amendment is "offense specific." EXAMPLE: Police were allowed to question a defendant without counsel about the murders of a homeowner and his daughter, even after the defendant had been indicted on burglary charges (and represented by counsel on these charges) relating to the victims' home [Texas v. Cobb, 532 U.S. 162 (2001)]. · Police Questioning of a Defendant: The deliberate elicitation of a pre-trial statement from a defendant is a "critical stage" triggering the right to assistance of counsel. 1. Deliberate elicitation includes express or implied questioning. 2. The defendant does not have to know that he is being questioned by a government agent. Therefore, this rule applies to the use of informants § and undercover agents to elicit statements from a defendant. 2. This is an important difference from the Miranda right to counsel. · Government agents may initiate contact with a defendant to elicit a voluntary and intelligent waiver of the Sixth Amendment assistance of counsel during questioning, even if they know he is represented by counsel. 1. This is an important difference from the Miranda right to counsel. EXAM TIP: Remember, just because questioning does not implicate the Sixth Amendment right, it may still implicate Miranda or the due process voluntariness rule. Analyze each of these protections independently. · Fruit of the Poisonous Tree and Confessions 1. If a statement is a "but for" consequence of a prior constitutional violation (normally, an arrest in violation of the Fourth Amendment), the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception, even if it complies with due process, Miranda, and the Sixth Amendment. § Attenuation is the most common exception asserted to use a statement resulting from a "but for" link to a constitutional violation (poisonous tree). Effective attenuation will depend on how "potent" the poison was: the more flagrant the constitutional violation, the harder it is to attenuate. § If an arrest is unreasonable because the police failed to obtain a required warrant, but nonetheless had probable cause, that will normally be dissipated by a valid Miranda waiver, so long as the statement is not elicited immediately after the arrest. § If an arrest is unreasonable because police did not even have probable cause, the taint is much more difficult to dissipate, and will normally require more than just a Miranda waiver for the government to prevail on an attenuation argument.

PRETRIAL RIGHTS AND PROCEDURES

The Grand-Jury · The grand jury is used to assess evidence presented by a prosecutor with no adversarial process and decide whether to issue a "True Bill of Indictment." · The grand jury requirement does NOT apply to the states. · For federal cases, the Fifth Amendment requires indictment by grand jury in order to bring to trial any charge with an authorized penalty of more than six months' confinement. · A grand jury is not an adversarial hearing; it is an investigatory tool. o The "target" has no right to be present and no right to assistance of counsel. o The prosecution presents evidence to the grand jury without a confrontation process. o The prosecution has no obligation to present clearly exculpatory evidence to the grand jury. · No Miranda warning is required for witnesses called to testify before a grand jury. the accused has no right in a grand jury to even know that the grand jury is looking into evidence against them - The exclusionary rule does not apply. And you can even use illegally obtained evidence to indict someone in a grand jury. Grand Jury Witness - A grand jury witness has no right to counsel inside the room Bail Hearing · A bail hearing initiates the formal adversarial process, but it is NOT a critical stage of that process, and therefore, the defendant has no right to the presence of counsel for the hearing. · The defendant is entitled to an individualized hearing to determine whether bail should be granted or denied. o The purpose is to secure the presence of the accused at trial. o There is no constitutional right to bail, but if appropriate, it may not be excessive. Plea Bargaining · The defendant may be convicted based upon a conviction beyond a reasonable doubt or by his plea of guilty. A plea must be knowing, voluntary, and intelligent, which means that the accused must be informed of the general nature of the offense he is pleading guilty to and the direct consequences of pleading guilty, including any immigration consequences. · The court must determine that the waiver of fundamental constitutional trial rights resulting from pleading guilty is intelligent and voluntary. · A plea of guilty waives evidentiary objections based on the Fourth, Fifth, and Sixth Amendments. · The defendant may plead guilty without admitting guilt. This "Alford" plea requires other evidence (like police reports) introduced to support the court's finding of guilt. - An Alford plea, in United States law, is a guilty plea in criminal court, whereby a defendant in a criminal case does not admit to the criminal act and asserts innocence. Charging Discretion · A charge that produces a discriminatory effect based on a discriminatory motive violates equal protection. o The defendant must show that similarly situated defendants were charged disparately. · When a prosecutor increases the severity of a charge after a defendant successfully appeals and is subject to retrial, it will violate due process unless the record includes new evidence that supports the increase in charge severity. 5) Right to a Speedy Trial · The right to a speedy trial is guaranteed by the Sixth Amendment. · Violation of the right is assessed based on the totality of the circumstances. o Length of Delay: Generally, more than one year triggers an inquiry, but defense-requested delays, including motions, are deducted from the duration calculation (the clock begins running once the defendant is accused by formal charge or is arrested and held to answer for a crime). § Pre-arrest/pre-charge delays are not considered in a speedy trial analysis. o Reason for Delay: A "good" reason is one that the prosecution has no control over, as opposed to one that the prosecution could have avoided by due diligence . o Demand for Speedy Trial: This is not essential, but if the defendant failed to make such a demand, it normally indicates that the defendant did not consider the delay prejudicial. · If the defendant establishes an unreasonably long delay for no good reason, the ultimate question will be whether the delay resulted in prejudice that undermined the values protected by the right. o There are three types of prejudice: § anxiety; § oppressive pre-trial incarceration; and § degradation of evidence compromising the accuracy of the trial. · The only remedy for a constitutional right violation is dismissal with prejudice (meaning the prosecution can never re-try the case). 6)Discovery · If the defendant can show after conviction that the prosecution failed to disclose evidence that was both favorable and material, due process requires a new trial (or new sentencing, if the evidence affected the sentence only). · Favorable: The prosecution is obligated to disclose certain evidence that is favorable for the defendant. o If the defense makes a discovery request, any evidence that would tend to help the defense is considered favorable and must be disclosed. o If the defense does not make a discovery request, only evidence that is obviously exculpatory is considered favorable and must be disclosed. · Material: Even if the defense proves that the prosecution withheld favorable evidence, the conviction will be upheld unless the evidence was also material. o Material evidence is evidence that would have created a reasonable probability of a different outcome. In other words, had the evidence been disclosed, it would have created reasonable doubt. EXAM TIP: If the facts indicate a defendant requested discovery but found out after conviction that the prosecution failed to disclose evidence, look to see if the question indicates whether the evidence that was presented was so strong that the defendant would have been convicted even if he had received the discovery. If so, the non-disclosed evidence was not material and the conviction will be upheld. · The destruction of evidence held by the government violates due process only where the defendant can show bad faith. o To show bad faith, the defendant will have to show that the destroyed evidence could have only helped him.

IDENTIFICATION EVIDENCE

The due process standard applies to all types of identifications (physical or photo) at all stages of the investigatory and prosecutorial process (before or after formal charges). Rule: If the defendant can prove that an identification procedure used by the government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification, the procedure violates due process and the ID is inadmissible. o The focal point of this due process test is reliability, which requires the defendant to prove: that procedures used were unnecessary; 2. that they were arranged by the government; 3. that they were suggestive; and 4. that the suggestiveness results in an "irreparable risk" of an unreliable ID. EXAMPLE: A witness gives a description of a mugger. The police show her a single photo. This procedure is unnecessarily suggestive because the police could have easily shown her a photo array. This alone is insufficient to violate due process. The defendant must show that this unnecessarily suggestive method produced an unreliable identification, which will turn on a totality analysis of a number of factors. Factors considered to assess whether an unnecessarily suggestive procedure resulted in an unreliable identification include: o whether there was an opportunity to view the criminal at the scene; o the witness's degree of attention; o the accuracy of the witness's description; o the degree of certainty of the witness; and o the time interval between the crime and the identification (the longer the interval, the less reliable). Because an out-of-court ID violates due process only if the suggestive procedures rendered it inherently unreliable, the witness will also normally be prohibited from making a subsequent in-court ID. 3) The Sixth Amendment Right to Counsel Rule Because an out-of-court corporeal identification procedure is a critical stage in the adversarial process, it violates the Sixth Amendment to conduct such a procedure unless the defendant's counsel is present or the defendant executes a knowing and voluntary waiver. This applies only to corporeal (in-person) identification, and only after the initiation of the formal adversarial process for that offense (when the suspect becomes the defendant). EXAM TIP: It does not matter why the defense lawyer is not present at the out-of-court identification. Even if the police act in total good faith, and the lawyer is absent because of his own negligence, conducting the lineup without the lawyer's presence violates the Sixth Amendment. · Consequences of Violation: If the police conduct a corporeal lineup in violation of the Sixth Amendment: o the results are per se (no exception) inadmissible at trial; and o the witness is prohibited from making a subsequent in-court identification of the defendant unless the prosecution can prove by clear and convincing evidence that the in-court identification is independent from the inadmissible out-of-court identification.

4th Amendment Part 6 - Warrant Excpetions

Was a warrant required, or was there an applicable warrant exception (MAKE SURE TO READ THIS CAREFULLY - SEE IF THERE IS A WARRANT) Serach and Seizure - make sure the first three elements are met, government agent ,probable cause it's a search to some sort of enclosure, reasonable expectation of privacy.And if those are met, what must exist? A warrant. If there's no warrant, the search is not allowed no matter what, unless the facts tell you, they were certain exceptions and the exceptions applied. Two Hypos: 1 hypo; The cops have probable cause that John has cocaine in his house. No warrant. They bang on John's door, the door falls over, they find the cocaine in plain view. Is the search okay? No. One answer is gonna say no, there was no warrant. D is gonna say yes if there were exigent circumstances. Stupid answer, because the facts didn't say there were exigent circumstances, the search is not allowed 2 hypo = . Cop has probable cause that John has cocaine in his house, cop bangs down the door with no warrant, cop finds 500 pounds of cocaine on the kitchen counter in plain view, John makes a motion to suppress the evidence. If the judge admits the evidence, did you hear me? If the judge admits the evidence, "Wait a minute, John, I thought you said it wouldn't come in." Right. Normally it wouldn't come in. But once in a while, they give you a question where they tell you, if the judge says the evidence is admissible, that question is actually telling me that the stuff is gonna come in. What would be the only grounds for this stuff to be admissible? They must be testing me on one of the exceptions. And when the question says if the evidence is admissible or if the judge allows the cocaine to come in, the strongest argument would be Coleen. N i) Where warrant required: A warrant is usually required before a search or seizure takes place, unless there are "exigent circumstances" or other exception applies. An arrest warrant in public by contrast is usually not constitutionally required (No REP in public, however an arrest in a home requires an arrest warrant and possibly a search warrant), Warrant Exceptions (types): 1. Search Incident to Arrest- o Police may automatically conduct a full-blown search of an arrestee and the area within their immediate control/lunging distance (including containers) as an incident of an arrest. o The SITLA must be contemporaneous to the arrest. o There is no authority to conduct a search incident to a mere citation. IMPT: you can't do. A SITLA unless you arrest the subject - you can't to a SITLA after giving a citation If the suspect is arrested in their home, the scope of the SITLA is limited to the area within lunging distance and does NOT authorize a search of the entire home - Remember about Plain View Exception - However, if the police reasonably believe that there are others in the home who pose a threat to their safety, they may conduct a cursory protective sweep to rule out that danger. This is not a full-blown search, and police may look ONLY where people could be hiding. o If PC supported an arrest, the SITLA is valid even if the officer had an ulterior motive and sought to take advantage of the arrest to search for unrelated evidence based on a hunch. EXAM TIP: Remember, an officer may have PC, but may also make a reasonable mistake. If an officer conducts an arrest based on PC and discovers evidence during the SITLA, and it later turns out they arrested the wrong suspect, the search is still reasonable so long as the mistake was "objectively reasonable." However, if a reviewing court concludes there was no PC to support the arrest, any contraband seized during the SITLA will be excluded. 2. Plain View Doctrine Exception o The plain view exception allows police to seize property they observe in public or while acting within the scope of an otherwise lawful search. § In such situations, it is not "reasonable" to require the officer to stop and secure a warrant in order to seize the property. o Accordingly, the plain view exception allows the warrantless seizure of property when: § the police observe the property while they are in a lawful vantage point (e.g., it is in public or they are otherwise lawfully in the place from whence they observe the item); § what police observe immediately establishes PC to justify the seizure; and § the officer has lawful access to the point of seizure (if the officer has to "get to" the item to seize it, they must have lawful authority to do so becuaser the plain biew exception does not apply to searches. Example: - A police officedfr folliwng you and he sees you take something out of your pocket and you gthre itg on the ground. And YOU Threw it on the ground and the officer pick it up and discovered it was crack cocaine. That crack coacin cane be seized without a warrant because 1) the officer observed it from a lawful vantage point because he was in public 2) what he saw immediately created PC because he saw it thrown from you and he has training ot know what this is 3) he has lawful access to the pointo o fseizure didn't have to conduct a search AND NOW 4) he can arrest you because he has PC from the facts before and your in public - facts before and your in public o The discovery of the item need not be inadvertent. Even if the police suspect that they might find an item while executing a search warrant that did not list the item, if it comes into plain view, the seizure is reasonable. EXAM TIP: Remember, plain view never authorizes a search. If the officer must search to find the item, the search must be lawful based on a warrant or some other exception (like exigency or consent). 3. Exigent Circumstances Exception o If police have PC, they may search without a warrant when they reasonably believe that waiting to obtain a warrant would result in: § imminent flight of the suspect; § imminent destruction of evidence; or § imminent danger to police or others in the area. o When police are in "hot pursuit" of a suspect with PC to arrest them, exigency allows them to enter any home the suspect retreats into without a warrant--even the home of a third party. EXAM TIP: Remember that if the police are lawfully in a location, they may seize any evidence they observe if they have PC that it is contraband pursuant to the plain view doctrine. Example: EXAMPLE: While on a routine patrol, Officer Jones observes an individual who matches the description of a suspect who just robbed a cab driver at gunpoint. As Jones approaches the suspect, the suspect bolts, ignoring Jones's verbal demands to stop running. The suspect runs into a house and slams the door behind him. Because Officer Jones has PC to arrest the suspect and is in hot pursuit, he may enter the home to arrest the suspect without obtaining a warrant, even if it is not the suspect's home. Once inside, any contraband that comes into plain view may be seized, whether or not it is related to the arrest. o Exigency is not invalidated if police conduct (such as banging on a door) triggers the exigency unless the triggering police conduct violates the Fourth Amendment. o Exigency will not justify a warrantless home entry solely to preserve evidence of a minor offense (like a minor misdemeanor). § However, imminent risk to occupants, even if resulting from a misdemeanor (like battery), does trigger the exigency exception. EXAMPLE: Police are dispatched to a residence in response to a 911 call by a victim of domestic battery. When the police knock on the door, a man opens it and refuses to allow the police to enter. The police may enter the home over the man's objection without first obtaining a warrant because they have PC that there is a victim in the home, and the danger to the victim creates an exigency. o Exigency may justify a warrantless blood draw to preserve evidence of blood alcohol, but ONLY if the police reasonably believe that the blood-alcohol evidence will be lost if they wait to obtain a warrant. 4. Automobile exception Automobile exception o Police may conduct a warrantless PC search of a car or any self-propelled conveyance without a warrant. § The inherent mobility of vehicles and pervasive government regulation justifies dispensing with the warrant requirement. o Think of the automobile as a substitute for a warrant. If the police have PC to search the automobile, they may do so without first obtaining a warrant. However, the scope of the search is identical to what it would have been had they obtained a warrant. The automobile exception does NOT apply to immobile vehicles (like a parked car no where near the roads, a vehicle in a junkyard, or one without an engine - not readily moble at the tutrb of the key An "automobile" for purposes of the exception is a vehicle able to move at the "turn of a key" and located in an area on or proximate to the roads o Any automobile stop may lead to PC that there is contraband in the vehicle. If PC arises after the initial stop, a warrantless search is justified. EXAMPLE: Officer Jones pulls a suspect over for speeding. As he is writing the citation, he asks the suspect, "Do you have anything in the car I should know about?" The suspect responds, "Just a little weed in the glove compartment." Officer Jones may now search the glove compartment for marijuana, and any contraband he observes while doing so is subject to a plain view seizure. § The exception extends to any container within the vehicle that also falls within the scope of the PC. EXAMPLE: Police have probable cause to believe that a suspect is transporting a stolen 50" flat-panel television in the trunk of his car. Police may stop the car and search for the television without a warrant. However, they may only search in parts of the car where the suspect could store the television (i.e., they could not search the glove compartment). EXAM TIP: Do not confuse this "automobile" exception with the SITLA of an automobile. Both the trigger and the scope for each is very different. 4. Consent exception Voluntary consent allows police to search within the scope of the consent even without a warrant or probable cause o Consent must be voluntary based on the totality of circumstances. There is no requirement to inform a suspect that they have the right to decline to give consent; voluntary does not mean intelligent o Consent is valid if it is obtained by an undercover officer pretending to be involved in criminal activity (like an officer pretending to be a drug buyer). o Consent is not voluntary if police coerce the suspect into providing consent through threats of unlawful action or by indicating that they will search anyway. o The scope of consent is normally implied based on the request and/or the item(s) the officer is looking for. o Individuals have the right to refuse to grant consent, withdraw consent, or limit the scope of consent. However, the person must clearly express any limitations on the scope of consent prior to the officer finding any evidence. EXAMPLE: If, in the prior example, the driver said, "You can search the car, but I don't want you to open the trunk," the officer would not have been authorized to look in the trunk. o Third-Party Consent § An officer may reasonably rely on third-party consent so long as the third party had actual or reasonably apparent authority over the area. § This applies to common areas, but not to where police know or reasonably should know that another person has exclusive control. Accordingly: · it is unreasonable to rely on a landlord's consent to search a tenant's apartment; · it is unreasonable to rely on a motel owner's consent to search a guest's room; and · it is unreasonable to rely on an employer's consent to search an employee's private storage area. § Police cannot rely on third-party consent when the other party is present and objecting. EXAM TIP: A present and objecting co-tenant prevails over another co-tenant who gives police consent to search. However, that objection has no "lingering" effect; if the objecting co-tenant leaves or is removed by police for a lawful reason (like being arrested), the subsequent consent to search by the other co-tenant is valid. 5. Administrative Searches Exception o This exception is best understood as agency-compliance inspections to determine compliance with health, safety, and administrative codes and regulations. § Because the primary purpose of these searches/inspections is not to discover evidence of a crime, they are reasonable so long as they are based on reasonable suspicion. o Normally, agency inspectors will also be required to obtain an administrative warrant/authorization to search private homes or businesses, with some exceptions. § Airport Screenings: In order to protect airline passengers from weapons and explosives, screenings are permitted based on individualized suspicion. · There is no constitutional right to travel by commercial air. As a result, travelers implicitly consent to these screenings. 6. Automobile SITLA Exception o If the suspect is arrested in a car or immediately after exiting the car, the scope of the SITLA is modified. o Like any other SITLA, police may automatically search the arrestee. o If, after being arrested, the arrestee still has genuine access to the interior of the car, the SITLA extends to the interior and all containers within the interior. o If the arrestee is secured and has no access to the interior of the car, the SITLA includes the interior ONLY if the police have reason to believe that evidence related to crime of arrest is in the car. EXAMPLE: Police arrest a person for driving on a suspended license. The arrestee is placed in handcuffs and police then search his person, finding a vial of heroin in his pocket. After he is placed in the back of a police cruiser, the police search the interior of his car and find an unregistered pistol in the glove box. The heroin will be admissible because the search of the suspect's person was within the proper scope of the SITLA. However, the pistol will be inadmissible, because the suspect did not have access to the car and there is no reasonable basis to believe that evidence related to the crime of driving on a suspended license would be found in the car. 7. Inventory Exception o An inventory is an administrative inspection of an impounded vehicle and/or an arrestee's property once it is taken into police custody, with no requirement for a warrant or probable cause . o An inventory search is normally reasonable so long as the police comply with their inventory regulation(s). o Police may inventory the arrestee's possessions. o Police may inventory the contents of an impounded automobile if authorized by regulation.. 8. · Special Needs Doctrine o This exception permits narrowly tailored seizures and/or searches without any individualized suspicion when objective facts indicate that the primary purpose of police action is the protection of the public from a serious immediate danger. o Common justifications of the special needs doctrine include: § sobriety checkpoints; § the search for escaped inmates; § counter-terrorism checkpoints; and § drug testing of airline pilots and railroad engineers. o This exception does not apply to generalized crime control or discovery of evidence. EXAM TIP: If the facts indicate that the police are just hoping to find evidence, they may not use a special needs program to do so, as the goal is indistinguishable from general crime control. If the facts indicate that they seek to rule out danger to the public, then they may. o A special needs search or seizure must be: § based on a fixed formula that deprives individual officers of any discretion to select subjects; § narrowly tailored in scope to address the specific threat; and § conducted in a location and manner that minimizes citizen anxiety. (like in public) o If the special need is valid, then police may seize any contraband that comes into plain view, even if it is totally unrelated to the special need. EXAMPLE: Police set up a checkpoint to check bags and backpacks of subway passengers based on a credible threat of a terrorist subway bombing. The police may search any bag capable of concealing a bomb. If, while doing so, the police observe unrelated contraband, like drugs, they may seize that evidence. EXAM TIP: Because a special needs stop is a seizure, if it is unreasonable (that is, not based on a valid special needs justification), any evidence it leads to will be tainted by the stop. However, if it is reasonable, any subsequent search or seizure will be unaffected by the stop, even if the evidence is unrelated to the special need. 9. · Border Exception o As an incident of national sovereignty, government officials may: § stop people and vehicles at permanent checkpoints located at or near (up to 100 miles inland) a border with no individualized suspicion (randomly); and § conduct routine searches of people and property with no individualized suspicion (randomly). o Reasonable suspicion is required for: § "non-routine" border searches (i.e., unusually physically intrusive searches, like a body cavity search) or a search that results in permanent destruction of property; and § roving border stops on U.S. roads. o The border exception applies to all international ports of entry, including international airports prior to clearing customs and immigration.

4th Amendment Part 2 - Government Action Search and Seizure

Was there a search or seizure? Was there a search? A search is an invasion of one's "reasonable expectation of privacy" (REP)(Katz Test). Subjective Prong: A person must have exhibited an actual subjective expectation of privacy. Objective Prong: The expectation must be one that society recognizes as being "reasonable." Two Tests to define reasonable: Case Law: See if there is any case law on point to show REP. If no case law move to major factors test.Major Factors Test (normative view under Katz): 1. Property Interest 2.Long Standing Social Custom 3.Past Practices & Reduced Expectations of Privacy 4.Assumption of the Risk 5. Legality & Nature of Activity Expected to be Found 6.Location/Setting Location: Although the S.Ct. stated the 4th Amendment protects people not places, the most important factor in determining the existence of a search is the setting where the government action takes place. The Open Fields Doctrine -Open Field Search NOTE: A trespass on an "open field" (private property beyond the curtilage of the home) does not qualify as an investigatory trespass-type search because the open field is not considered part of the home. § intrude upon the individual's reasonable expectation of privacy (even if it does not involve a physical trespass to the "person, home, papers, or effects").The Four Factors from DunnProximity - How close to the home/building is the thing to be searched or where the search was conducted (in this case it dealt with where the agents were standingConnected Barrier - Is it clear that a fence or other barrier served to demark a specific area connected with the house or building.Nature of the use of the property. Is it a domestic area - Could the area be fairly characterized as so associated with the activities and privacies of domestic life, as to be deemed part of the home/building. Commercial Use: If area used for commercial purposes there is a reduced REP.Extent of protection - Were the steps taken by the owner to protect the area from observation from open fields minimal or extensive.If it is an open field and entry, even with cutting of fence and gate, this is still not 4th amendment activity. Maybe bring civil case for damages to property.Vantage Point. § Courts have held that an individual does not have a REP in the following items (because they are exposed to a third party or the public): 1. handwriting exemplars based on writing shared with a third party; 2. voice exemplars (playing someone voice); 3. bank records (because the bank is a third party); 4. pen registers (phone company records of phone numbers dialed); 5. header info on an email sent through an ISP (email content is within REP); 6. conversations with a "false friend" (snitch) believed to be private but actually recorded by police with consent of the other party to the conversation; 7. trespasses onto open fields (unoccupied areas of private property beyond the curtilage of the home); 8. naked-eye observations of private property by air (though these must comply with applicable flight limits); 9. aerial photography of large, fenced-in areas around an industrial complex using high-powered cameras; and 10. discarded and abandoned property (i.e., garbage discarded for collection and abandoned rental premises - npt the garbage can literally on your property but that which is one you street). 11. 1. Police Use of Devices or Animals that Enhance Human Senses: Normally, the use of sensory enhancements does not transform something that is not a search into a search. § When police use a dog to detect the odor of narcotics, this is not a search because a dog sniff is considered capable of exposing only the presence of contraband, and therefore does not intrude on a legitimate expectation of privacy. 1. However, if police bring the dog onto the curtilage of the home and allow it to explore for a scent, this physical trespass of the home qualifies as a search. § Use of commonly available equipment to enhance the natural senses of sight, hearing, or smell will not qualify as a search unless: 1. police enter upon the curtilage of the home to utilize the device; or 2. police use a device (like a thermal imager) that enables them to see "through the walls" of a home. Exam tip: The Supreme Court held in Carpenter that even though cell site location information is shared with the cell phone service provider, it nonetheless falls within a REP because there is no genuine voluntary choice to share such information. This means police access to cell site location information is a search. EXAM TIP: Using binoculars while sitting in a police car on the street to enhance the view of a suspect's property or activities on his curtilage is not a search. However, using a thermal or x-ray imaging device that reveals the location of property or activities the suspect sought to conceal inside their home is a search. Note: Police officer can go to one's house and ring the doorable but if they do much more then they are intruding on the curtilage of the home where you have an RPP and thius a seeach

4th Amendment Part 3 - Government Action - Seizure

(i) Was there a seizure? 1. of a person - government action that a reasonable person would believe limited his or her freedom of movement? 2. of a thing - an interference with a person's possessory interests in property? Seizure is defined (of a person): a seizure of a person occurs when a government actor significantly interferes with a person's freedom of movement. The seizure of a person sometimes, but not always amount to "an arrest". Seizure defined (of a thing): , the interest protected is a possessory one: a seizure of a thing occurs when the government works some meaningful interference with an individual's possessory interests in that property. Ex- Seizure would have occurred if a police officer burns your book Ex- Insignificant Seizure (that would not rise to the level of a seizure) would - an officer picking up a book and locking the rough the pages of the book would not be a seizure I n meaningful interference (but it could be a search by violating their reasonable privacy expectations) (i) No on either one and 4th does not apply, but it doesn't mean other constitutional rights weren't violated. o No warrant is required to arrest a suspect in public for a felony. o A misdemeanor arrest requires the offense occur in the officer's presence or with a warrant. o However, remember, probable cause is always required for a valid arrest.

GUARANTEES OF A FAIR TRIAL: Right to Counsel at Trial

1) Right to Counsel at Trial Absent waiver, an indigent defendant is entitled to a court-appointed lawyer for any trial that results in any sentence of confinement. ( MEANING: if an indigent defendant asks for a lawyer and the request is denied, he may not be sentenced to confinement (even if suspended), and if he is, the conviction must be reversed on appeal.) EXAM TIP: Note that the actual result of the trial is the trigger for requiring the appointment of counsel to an indigent defendant. While this seems backwards, it is an easy rule to remember: if an indigent defendant asks for a lawyer and the request is denied, he may not be sentenced to confinement (even if suspended), and if he is, the conviction must be reversed on appeal. · The right to counsel means the right to effective representation. Courts presume that legal counsel is effective (it is very difficult to prevail on an ineffective assistance of counsel claim). · To prove a violation of the right to effective assistance of counsel, the defendant must prove that: o counsel was ineffective (i.e., performed below minimum standard of lawyer conduct—look for a violation of a basic ethical duty); and o had the lawyer been effective, it would have created a reasonable probability that the outcome would have been different—effective representation would have created reasonable doubt. EXAM TIP: No matter how deficient the lawyer's performance was (i.e., sleeping during trial, offering no evidence or argument, or failing to make a discovery request), the conviction will be reversed only if the defendant can show that an effective lawyer would have created reasonable doubt. · Ineffective Assistance and Plea Bargaining o If a lawyer's incompetent advice leads a defendant to waive trial and accept a plea, the defendant can challenge the conviction by showing that there was a reasonable probability that the defendant would have pled not guilty had they received competent advice. o If a defendant loses the benefit of a plea offer because the lawyer's incompetence resulted in the offer expiring, the defendant can challenge the conviction by proving a reasonable probability that the defendant would have accepted the plea had they been informed and that the prosecution and the court would have accepted the plea. 2) Right to Jury Trial · Federal and state defendants have a right to trial by jury if they are charged with any single count or offense with an authorized penalty of more than six months' confinement. · All jury verdicts must be unanimous. EXAM TIP: Note that unlike the right to appointed counsel, the right to a jury is "triggered" by the RISK, and not the RESULT. · Makeup of the Jury Jury Pool: The defendant has a right to jury selection from a fair cross-section of the o community in the jurisdiction where the defendant is tried (ethnic and gender demographic). § Violation of this "fair cross-section" rule requires that the defendant prove that a distinct group was "systematically excluded" from the jury pool. o Petit (Actual Trial) Jury § There is no requirement that the actual trial jury be a fair cross-section. § However, use of peremptory challenges to exclude prospective jurors based on race, gender, or ethnicity violates the Equal Protection Clause. · If a peremptory challenge of a prospective juror is objected to on this basis, the party making the challenge must offer a race-, ethnicity-, or gender-neutral basis for the challenge. · This neutral basis need not rise to the level of a causal challenge, but must be more than an assertion of good faith or speculation about the juror. ---------------------------- Procedural rights- What Prosection has to prove and What the Defense has to prove Difference between what the prosecution has to prove and what the defense has to prove. --- Prosecution must prove every element of the crime, all elements of the crime by what? Beyond a reasonable doubt --- Defenddant - , I'm trying to prove an affirmative defense, then I need to prove the defense by preponderance of the evidence Remember - no mandatory presumtpion in criminal case, it violates due process

Knock and Announce Rule

o Knock-and-Announce Rule § Police must "knock and announce" their identity before entering the home to execute the warrant. However... § Knock and announce is NOT required if the police have a reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or cause the flight of the suspect. § Violation of the knock-and-announce requirement will not result in exclusion of evidence.

Confrontation Clause

3) Confrontation Clause · The Sixth Amendment provides a defendant with a right to confront witnesses and evidence presented against them. · The right to confrontation is triggered only by the introduction of testimonial evidence—statements made in a situation where a witness would expect it to be used as evidence in a criminal trial. EXAM TIP: If a witness statement is not "testimonial" in nature, it does not trigger the requirements of the Confrontation Clause and may be admitted without confrontation. 2 Hypos 1 Hypo First scenario, there are codefendants, two defendants, one defendant is going to make a confession implicating the other. We're both co-defendants, okay? You're making confession against me. I have the right to make sure that you testify so I can cross-examine you. One co-defendant is only allowed to confess implicating their co-defendant if they are available to testify. That's the definition you're looking for. The hypo has to be to co-defendants, one defendant is gonna confess against the other they could, but that confessor must be available to testify because I wanna get them on the stand and get them on cross. So if one defendant who's gonna make a confession or they're using a confession against me, would not be available to testify somehow, that is not permissible 2 hypo Then we have these statements that were made out of court, not necessarily confessions, but these are just statements out of court, which would implicate the defendant. And the issue is when can those out-of-court statements come in? Because I'm not able to confront the person? What's going on with that? If a statement we just made two weeks ago, three weeks ago, four weeks ago, when can that statement come in against the defendant and not violate the right of confrontation? And this comes down to whether these statements were testimonial or not. Was the statement testimonial? If an out-of-court statement is testimonial, which means it was not made during an emergency, it was with the help the police not made during an emergency, then that statement is inadmissible. If this statement was made a month ago, someone was implicating John and it was testimonial. It was just in a basic conversation and they brought me up and now they're over there someplace. That statement is inadmissible because it's testimonial. It was not made during the course of some sort of an emergency. If, however, the statement was not testimonial, which means it was made during the police investigation, during a 911 call, during some sort of an emergency, then that statement will be admissible. If I'm now on trial and now they wanna bring in a statement that some person called 911 on the night of the alleged shooting and saw a guy running down the street who looks just like me, and they ID'd me, now is that statement going to come in against John, when it was an out-of-court statement? If that statement was made during an emergency, which means while the emergency, while the crime was going on or they're trying to help the cops solve the crime, during the police investigation, during the emergency to help the police, they're chasing the guy, they're running after the guy, the cops are trying to find the guy, then that statement is going to be admissible. You're looking for a VIDEO LECTURE TRANSCRIPT 21 statement made during the emergency circumstances of the crime just occurring and then that statement will be admissible. If there was testimonial, not made during the course of such investigation, or the cops are running around in the police car, or the 911 call, then that statement implicating me will not come in because they say that it's just testimonial. Got it? That's going to be very, very fact-specific. Keep them separate

Exclusionary Rule

8. If the 4th Amendment was violated, is the appropriate remedy exclusion of the evidenc Does an exclusionary rule limitation apply?Was the evidence discovered through an independent source?Inevitable discovery?Taint of the constitutional violation attenuated? · Exclusionary Rule o A defendant with standing to invoke the exclusionary rule does so to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search or seizure. o Fruit of the Poisonous Tree Doctrine § Any evidence discovered through the initial illegality (including oral statements and physical objects) falls within the scope of the exclusionary rule. The constitutional violation "taints" the "fruit" derived from that violation. Hence, it is "fruit of that poisonous tree." § If there is a "but for" connection to the illegal conduct, the evidence "grew" out of that poison tree. § Evidence linked to a poisonous tree is inadmissible unless the prosecution can prove that it falls within one of the exceptions below. § However, remember that a defendant must have standing to object. As a result, it is not enough that the evidence grew out of just any poisonous tree; it must grow out of that defendant's poisonous tree, and not someone else's. EXAM TIP: Ask whether the "poisonous tree" (constitutional violation) was planted in the defendant's constitutional turf (so that they have standing to object). In other words, think of this as fruit of HIS or HER poisonous tree. § Three Exceptions 1. Independent source? o An exception applies when there is no causal connection between the violation of the defendant's constitutional rights and the discovery of the evidence. Example ---- like an two officer one has a bad search warrant and the other has consent - if it is from the consent and not the other than it is good 2. Inevitable discovery? o There is an exception when evidence has been obtained through the defendant's poisonous tree, but the prosecution can prove that the police would have inevitably discovered the evidence through a different, independent source. o This arises where the police have already set in motion the "gears" of inevitable discovery. EXAM TIP: Think of this exception as an "almost" independent source. The police would have inevitably found the evidence independently, but did so through the poisonous tree. EXAMPLE: The defendant is arrested for driving under the influence. He voluntarily gets out of his car and, after failing the field sobriety test, is handcuffed and placed in the police car. The police then initiate the process of towing and impounding the car. However, before the car is towed, an officer searches the trunk without authority and finds contraband. The impound regulation requires police to inventory the trunk once the vehicle arrives at the impound lot. Because it was "inevitable" that the trunk would have been searched pursuant to the impound, that search was already set in motion, and so the evidence discovered unlawfully will still be admissible. Notes: i) Under the inevitable discover exception, evidence is not barred by the exclusionary rule, if it would inevitably have been discovered by other police techniques had it not first been obtained through the illegal discovery (police, in violation of Miranda, induced Δ through Christian burial speech to reveal the location of the body of his murder victim. Police were conducting a search of the same area as the body so its discovery would have been inevitable. --- Nix v. Williams ) 3. Taint of the constitutional violation attenuated? o This exception applies to evidence so distant from the initial illegality that the taint of the poisonous tree no longer infects the evidence. o The attenuation exception turns on a combination of the flagrancy of the violation (the potency of the poison) and the distance between the violation and the evidence obtained (the evidence of attenuation). The more flagrant the constitutional violation, the harder it is to prove attenuation. o Factors supporting attenuation include: § different locations; § the passage of time; § different officers; and § a valid Miranda waiver (if it is a confession). EXAMPLE: If the police discover an outstanding arrest warrant during the course of an unlawful seizure, the warrant attenuates the taint of the illegality and the subsequent arrest, and any evidence discovered during the SITLA will be admissible. EXAMPLE: Attenuation will often be asserted when police obtain a voluntary confession following an unlawful arrest. If the confession follows immediately after the arrest, the exception will rarely apply. EXAM TIP: It is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a required warrant even though they had probable cause (like an in-home arrest without a warrant) than it is to attenuate the taint from an arrest where the police did not even have probable cause. This is because the "poison" from the first violation is less potent than the "poison" from the second violation. · Other Limitations to the Exclusionary Rule o Impeachment § The exclusionary rule does not apply to the use of tainted evidence to impeach the defendant's testimony. This means that the prosecution cannot use this evidence in their case-in-chief, but if a defendant gets on the stand and testifies, then the evidence can be used to impeach the defendant. o Good-Faith Exception § When police rely in good faith on a facially valid warrant that is later determined by a reviewing court to be invalid, the evidence they seize will still be admissible. § Because the only purpose of the exclusionary rule is to deter police misconduct, it does not apply when the Fourth Amendment violation is the result of an error by the magistrate or other judicial official issuing the warrant. § The good-faith exception will not apply if a reasonable officer should have known not to rely on the warrant. § Additionally, no exclusion applies even when there is police error, so long as the error is isolated negligence attenuated from the point of arrest. EXAMPLE: The Supreme Court has applied the good-faith exception to an arrest in reliance on a warrant that should have been purged from the system by the police, even though it was the police agency that made the clerical error. § The good-faith exception will not apply where: · police lie or mislead the magistrate (a lie by one officer is imputed to all officers in the chain of events); · the warrant is so facially defective that no reasonable officer would rely on it; · a reasonable officer would know that the magistrate is not neutral and detached; or · the supporting affidavit is completely lacking in probable cause. EXAM TIP: Warrants are usually issued by magistrates based on their conclusion of whether the evidence presented is sufficient to establish probable cause. Motions to exclude that evidence are presented to the trial court, which then reviews the warrant application in order to determine whether the magistrate made a proper determination of probable cause. Sometimes, the trial court determines that the magistrate made a mistake in issuing the warrant because of a lack of probable cause. However, so long as a reasonable officer would have still relied on the warrant, then evidence will be admissible.

4th Amendment Part 4 - Government Action Search and SeizureStanding

Constitutional Protection of Accused Persons 2 If the 4th Amendment applies, does the Δ have standing to object to admitting the evidence? Did the search affect this Δ's reasonable expectation of privacy, freedom of movement, or possessory interests? o A defendant has standing to invoke the exclusionary rule when: § the defendant has an ownership or possessory interest in the place searched or item seized; · This includes the owner or possessor of a car when police search the car in violation of the Fourth Amendment. · However, a passenger has no standing to object to the search of the owner's car (unlike a passenger who shares a possessory interest, like a spouse). § the defendant is unreasonably seized by police; or · The seizure of a car equals a seizure of all of the vehicle's occupants, including passengers. EXAM TIP: Remember that if the facts indicate an individual was seized in violation of the Fourth Amendment, any evidence that seizure leads to is presumptively inadmissible as fruit of a poisonous tree. § the defendant is a social guest in someone else's residence whose presence is more than brief, especially if an overnight guest. EXAMPLE: An overnight guest shares standing to challenge a search of the host's home. · Commercial or short-term social visitors (neighbor to get some milk) do not share standing in the host's home.

4th Amendment Part 1 - Government Action

Criminal Procedure Part 1 Focus on what the officer is doing not on what they found 1. 4th Amendment Analysis - Checklist (for Search and Seizure) Does the 4th Amendment Apply? 1. Was there government action? (all state agents including puvlic school officials ) 2 .Did the government know of and acquiesce in the intrusive conduct?If so, was the private actor's purpose to assist law enforcement efforts rather than to further his own or her won ends?

Double Jeopardy

Double Jeopardy · Definition: Double jeopardy prohibits placing a defendant in jeopardy for: o the same offense; o by the same sovereign (the federal government and each state are separate sovereigns); o more than once. · When Jeopardy Attaches: When a defendant moves to dismiss a charge based on a violation of double jeopardy, the defendant must establish that they had been in jeopardy for the same offense by the same sovereign. · Being previously charged is insufficient; the defendant must prove jeopardy had attached. Jeopardy attaches: o in a non-jury trial, when the first witness is sworn in and the court begins to hear evidence; and o in a jury trial, when the jury is impaneled and sworn in. EXAM TIP: When a grand jury fails to indict a target or a charge is dismissed prior to the jeopardy attachment point, jeopardy has never attached and that target may again be the subject of a grand jury investigation for the same offense or the charge may be brought again. · Same Offense: Two crimes occurring out of the same transaction are considered the same offense, unless: o each charge requires proof of a separate criminal impulse (i.e., multiple victims in one transaction); or o each charge requires proof of a separate factual element. EXAMPLE: A defendant is charged with three counts of violating a federal narcotics statute. The indictment alleges that during one transaction, the defendant sold oxycontin to two purchasers. Count I alleges a sale to Purchaser 1 without a prescription in violation of Section I of the statute. Count II alleges a sale without a prescription to Purchaser 2 without a prescription. Count III alleges a sale to Purchaser 2 without a tax stamp for the same sale as Count II. Each of these three counts is a "separate" offense for purposes of double jeopardy. Each purchaser is a "separate unit of prosecution" even though the sales occurred during the same transaction. The two counts arising from the sale of the same oxycontin to Purchaser 2 are separate offenses because each requires proof of a different factual element in order to convict. HOWVEverL if its like murder and manslaughter, each crime doesn't require proof of a separate offense because all murder is manslaughter with malice · Separate Sovereignties Doctrine: The Double Jeopardy Clause does not prevent dual prosecution by separate sovereigns; a defendant may be prosecuted for the same criminal conduct by separate sovereigns. o Each state is a separate sovereign, and the federal government is separate from the states.

Fifth Amendment Privilege against Self-Incrimination (PASI)

Fifth Amendment Privilege against Self-Incrimination (PASI) · No person shall be compelled in a criminal case to be a witness against themselves. · The Fifth Amendment provides individuals with an absolute privilege to refuse to testify when: o the individual is subjected to government questioning in any context (e.g., at a trial, grand jury, legislative hearing, police questioning, etc.); o the defendant has a real and substantial fear that testimony will result in self-incrimination or contribute to the defendant's criminal conviction; and o the defendant asserts the privilege by refusing to testify. EXAM TIP: The PASI applies only to "testimonial" evidence and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (e.g., blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.). · Immunity to Eliminate Risk of Self-Incrimination o Use/Testimonial Immunity: Prohibits the use of a witness's testimony or any evidence derived from that testimony against the witness. The government can still prosecute the witness so long as the evidence has no connection to the testimony. o Transactional Immunity: Prohibits ANY future prosecution of the witness for the transaction that is the subject of the testimony. EXAM TIP: Don't confuse the PASI with the Miranda rule. The PASI is the privilege that allows individuals to refuse to answer questions. Waiver of the privilege is normally established merely by answering the question. The Miranda rule was established because the Supreme Court concluded that merely answering questions was insufficient evidence that a suspect waived the privilege when subjected to custodial interrogation. In that situation (a Miranda warning and waiver), the Court imposed an increased burden on the government to prove waiver of the PASI.

Warrant execution requirements

If a warrant was required, was the warrant SUFFICIENT Elements: FOR THE WARRANT TO BE SUFFICIENT: 1. Current facts , 2. issued by a neutral and detached magistrate, 3. and places and/or persons to be search must be specific. (look at where the current warrants says it) Rememeber they can takewhats in plain view but ONCE THEY FIND WHAT THEY HAVE FOUND WHAT THEY ARE LOOKING FOR THEN THE SEARCH MUST STOP If the search or seizure was accompanied by a warrant, did the police execute the warrant reasonably? IF THE SEARCH WAS ILLEGAL - it doesn't automatically dismiss the indictments Officers can conduct a protective sweep of the home ONLY IF : Officers executing an arrest warrant in a private home may conduct a protective sweep for individuals who might be concealed on the premises if if there is reasonable suspicion that they are present and might pose a danger to the officers. · Warrant Execution o Even when police act pursuant to a valid warrant, how they execute it may render their action unreasonable. § Warrant execution that "shocks the conscience" is unreasonable. EXAMPLE: It is unreasonable to require the removal of a bullet from an individual suspected of robbery when the bullet is deeply embedded in the body and surgery to remove the bullet would endanger the life of the suspect.

4th Amendment Part 5 - Probable Cause/ REasoable Suspecion/ Mere Suspicion

If the 4th Amendment applies and the Δ has standing, was the search or seizure BASED PC, RS, OR MS? What was the level of justification required by the 4th Amendment? Probable Cause- Must have probable cause for a Search or Seizure --- What can I use for Probable Cause - 1. Police can Informants especially if they are reliable informants 2. If the police said if they are informants look for the totality of the circumstances o Probable cause (PC) means a "fair probability," and exists when there are facts and circumstances that lead a reasonable officer (objective standard) to conclude that the individual committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search). o Objective Standard: PC is tested objectively based on facts and circumstances; a police officer's subjective motive, even if improper, will not invalidate PC. o - For example if ythe officer really wanted to search me but did have PC and the officer sees you jay walking he can conduct an arrest incident to search even though his subjective motive was to search you at all cost so long as he has objective facts that give PC § PC may be established in many ways, including eyewitness observations, forensic evidence, or a suspect's own admissions. § When police rely on an informant's tip to establish PC, a totality of circumstances test is used to determine whether the tip is sufficiently reliable. · The tip may serve as a basis for a valid probable cause arrest if reliability is established by: o the informant's tip containing specific details; and o the reliability of both the details and the informant being confirmed prior to the moment of arrest. - like the informant has specific details on the criminality (insidet infomaiton) of the other person - not just generic information AND MUST be confirmed by the officer -=- SO ITS LIKE A THREE PART TEST EXAM TIP: Corroborating a prediction that any neighbor with an "axe to grind" could make to the police (like the car someone drives, the route they take to work, or the time they normally leave every day) does not indicate that the informant really knows anything about the suspect's criminal activities, and therefore normally will not establish probable cause. EXAM TIP: Remember that any search or seizure without a warrant is presumptively unreasonable, meaning the government bears the burden of proving that it falls within an established exception. Therefore, if the fact pattern indicates a search or seizure withouta warrant, you must determine whether an established exception is indicated by the facts 3. Reasonable Suspicion, Stop and Frisk' Terry Frisk An officer can stop someone if there's reasonable suspicion that criminal activity is afoot, And can frisk you pat me down and frisk me ONLY if there's further evidence that I may be armed, that I may have a weapon on my person. o Reasonable suspicion that crime is "afoot" may be established by: § police observations or other eyewitness reports to the officer; § a person's flight from police in high-crime areas; or § an informant tip plus police investigation that corroborates the tip's predictions. · Unlike a tip that establishes PC, to establish RS, the tip does not have to indicate that the informant has "insider" access to the suspect. · However, an anonymous tip that simply indicates existing facts will not establish RS even if the police corroborate those facts. - The anonymous tip must provide an accurate predicitive infomaiton not just existing facgts like below EXAMPLE: Police receive an anonymous tip that an African-American teenager around six feet tall is at a bus stop wearing a red plaid shirt, and that he has an illegal pistol tucked into his waistband under his shirt. Even when the police corroborated that a teenager matching this description is located at the bus stop provided in the tip, there is no reasonable suspicion because there is nothing predictive about the information corroborated. EXAM TIP: Remember, if the RS that led to the Terry stop grows into PC during the stop, the suspect may then be arrested. 4. Something else

Voluntary Confessions

· Coercion o Coercion is government conduct that overbears the free will of a suspect. o It is assessed based on the totality of the circumstances. Factors to consider include: § the defendant's age, health, education, intelligence, gender, and cultural background; § the location, duration, and physical conditions of interrogation; § the number and demeanor of police officers, and the suspect's experience with the criminal justice system; and § any deception or trickery by the police.Use and Force and Fear of Physical InjuryLengthy Interrogation and Deprivation of Bodily needs, Use of Psychological techniques, Promises of leniency EXAM TIP: Look for police conduct during an interrogation that abuses or wears down the suspect, like threats of injury, use of physical force, or relentless psychological pressure. o Because coercion is based on the totality of the circumstances, police deception and trickery during interrogation is just one factor to consider, and rarely, in and of itself, renders a statement involuntary. There is no impeachment exception for an actually coerced statement, and no requirement that the suspect be in custody when the statement is made

Miranda Rule

· Statements obtained during custodial interrogation are inadmissible in the prosecution's case-in-chief (opening statement through the prosecution resting) in the absence of Miranda warnings and proof of a valid waiver. (1) Was a suspect in custody - deprived of freedom of action in any significant way, that is, held incommunicado in a police dominated atmosphere? § The test is objective from the suspect's perspective; an officer's intent to arrest does not equal custody until the officer does something to indicate that intent to the suspect. § A Terry stop is not custody, because it is a brief investigatory seizure. The police may question individuals subject to a Terry stop without triggering Miranda rule. (2) If yes, was he subjected to interrogation, or did he instead spontaneously blurt out a statement. o Interrogation: Direct questioning (anything with a question mark) or other words or actions that a reasonable officer would anticipate were likely to result in eliciting an incriminating response. (3) If he was subjected to interrogation, was the interrogation by a government actor? (4) If yes, is there an applicable exception to the Miranda rule - such as public safety or routing booking? 1. Public Safety Exception § When the purpose of police questioning is to protect the police or the public from imminent danger of serious harm, the police may question a suspect in custody without a Miranda warning or waiver. 2 Rountine Questioning - i) Identification Questions - Routine booking questions do not require Miranda warnings, anything gained can be used. (5) If no, was the suspect read the following rights? (i) You have the right to remain silent; (ii) Anything you say can and will be used against you in a court of law; (iii) You have the right to consult with a lawyer and to have the lawyer with you during the interrogation; (iv) If you cannot afford a lawyer one will be appointed to represent you prior to any questioning. (6) If yes, did the suspect voluntarily, knowingly, and intelligently waive both his right to silence and his right to counsel? o In order to cut off questioning, a suspect must make an unambiguous and unequivocal statement invoking either the right to silence ("I don't want to talk") or the right to counsel ("I want a lawyer"). o Remaining silent after the Miranda warning is not an invocation of the Miranda right, and police may continue to talk to the suspect. § However, to use any statements in response to questioning, police must prove that the suspect made a valid waiver. · Waiver of Miranda Rights o Did the suspect make a knowing and voluntary waiver? If not, Miranda prohibits the use of the statement. o Waiver requires the prosecution to prove that: § the suspect understood his rights (orally or written); and · The suspect need not be warned of possible charges. § the suspect made a voluntary decision to answer questions. o Waiver cannot be presumed from silence. However: § a suspect's prolonged silence after being advised of their Miranda rights can be used to establish that the suspect understood the rights; and § if the suspect then answers questions, that can be proof of a voluntary relinquishment of the right to remain silent. o A valid waiver is strong evidence that the subsequent confession is actually voluntary in compliance with the due process rule. § However, it is possible to comply with Miranda and still violate due process voluntariness test (for example, threatening violence to procure a confession after a Miranda waiver). (7) If the suspect refused to waive his right to silence (invoke his right to counsel) did any subsequent questioning resume only after scrupulously honoring the suspect's right to silence, as determined by consideration of at least the following factors? § Invoked Right to Remain Silent: Police may not "badger" the suspect to change their mind. To resume questioning, the police must allow for a significant amount of time to elapse, and then obtain a new Miranda waiver. The passage of time, questioning by a different officer, and questioning on different subject matter are factors that indicate whether the police honored the invocation and that the subsequent waiver is valid. § Invoked Right to Counsel: Police may not resume questioning until counsel is present unless the suspect re-initiates contact with police and executes a new waiver, or at least two weeks have passed after the suspect was returned to their normal environment before police obtain a new waiver. 2. The invocation of either right is not offense-specific. That means that the "re-initiation" rules apply to any offense that the police seek to question the suspect about, even if it is a different officer from a different jurisdiction. § This is an important difference between the Miranda right to counsel and the Sixth Amendment right to counsel. Because it is not offense-specific, the Miranda right is more protective. § UNDERCOVER police question is does not trigeer Miranda warning and waiver requirement b · Limitations and Exceptions to the Miranda Rule A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement because it does not trigger the fruit of the poisonous tree doctrine i) Requirements - A waiver must be voluntary, knowing and intelligent (Zerbst Case). (1) Voluntary - Totality of the circumstances like voluntariness. Knowing and Intelligent