Crim Pro

▼	Right to Council- 6th amend.  incorporated against states in Gideon v. Wainright- 1963- Kicks in only after begining of formal proceedings, and only at critical stages
	•	Guarantees the right to competent council
	▼	Due Process is the only protection preinditement and when the D is not physically present post inditement.
	•	Fundamental fairness, reliability is the lynchpin
	•	Due process is violated if the out of court ID is 1)unnecessarily and  2)suggestive
	•	Applies to both retained and appointed council.
	•	Why? Right to council pretrial ensures the fairness of the ultimate trial process
	▼	When is there a right to council
	▼	All felonies and misdemeaners if there is the possibility of jail time, however short.
	▼	Why? Incarceration is difficult to correct if given eroniously
	•	Taking away a persons liberty is different in kind from all other punishments.
	•	Why not all criminal cases? Practical matter - defense council isn't cheap
	▼	NOTE FROM OUTLINE: If the question asks: THe D asks for council and the request is denyed- a violation of the 6th amendment has occured ONLY if the person lost at trial AND was sentansed to jail time.
	•	a violation also occurs if the person receives probation and a suspended sentence if probation is violated. Alabama v Shelton 2002.
	•	State rules may provide for council in more situations, just not less.
	▼	It is a fundamental right
	•	There is a constitutional right to protect life liberty and property
	•	You must be able to effectively guard those, A lawyer does that.
	▼	The right to council attaches only after the initiation of an adversarial criminal proceeding.
	•	NO RIGHT in a preindightment police lineup.
	•	NO RIGHT during a grand jury hearing- this is considered investigatory in nature
	▼	D is entitled to Council at all critical stages of the proceeding- Wade
	▼	A "critical stage"
	•	is any time - post inditement where the D is present.
	•	is a time when the defendant's rights can be compromised, and having an attorney for the defendant present might avoid the compromise. 
	▼	A line up - post inditement is a critical stage. -Kriby 1972
	•	Why do we need council in the line up- Avert suggestive procedures- Gather evidence
	▼	Right to council at all post indightment lineups or those where the D is physically present.
	▼	Photo lineups do not get the right to council- Ash- Because the D is not physically present
	•	Pragmatically, this is a slippery slope. Allowing council at photo lineupes - ok- where do you draw the line? Isn't a photo line up also a witness interview? Do we now require the attorney to be there for all witness interviews?
	•	Custodial Interogations- Miranda (but note- this right is derived from the 5th right against self incrimination- NOT the 6th like the rest of the right to council analysis.
	▼	Other critical stages:
	•	Pretrial arraignments, Formal charge, Psychiatric examinations, preliminary hearing to determine PC.
	▼	States can and do change what a critical stage is statutoprily.
	•	Some say that the issuance of an arrest warrant by a magistrate is tantamount to a "formal charge"
	•	Some say those taken into custody under an arrest warrant.
	▼	Kirby rule-Arrest is NOT considered the start of formal proceedings
	▼	Wade applies only after the beginning of adversarial process
	•	No right to council before formal proceedings
	▼	Postconviction
	•	entitled to council at all sentencing hearing and at the FIRST automatic appeal
	•	NOT at parol or probation revocation hearings.
	▼	"Effective council"
	▼	cannot be asserted unless there was a right to council in the first place.
	•	So if you are convicted of a misdimeanor, and get a fine, you can't raise the claim that they lawyer was incompetent - because there is not right to council in that case.
	▼	D must show that the council's performance was deficient
	•	The errors must be so serious that council was not functioning as the "council" guaranteed in the 6th Amend.
	•	the Q: is "did counsel's representation fall below an objective standard of reasonableness" Stricktland v Washington. 
	▼	"Reasonable" standard.
	•	Under prevailing professional norms, and the totality of circumstances.
	▼	Duties
	•	Loyalty, have skill and knowledge, Have no conflicts of interest.
	▼	Circumstances
	•	Was the defendant cooperating?
	•	Was the D helping at all?
	•	What was the nature of the crime.
	•	Does the D have mental problems.
	▼	There is no check list about what is or is not reasonable
	•	What is or is not reasonable differs from case to case.- Strategy could vary in each case.
	▼	The burden is on the D to prove the deficiency
	▼	The reviewing court should strongly presume that the attorney was acting correctly.
	•	A big hurdle to pass for the D.
	•	Was it a strategic choice, or was it a genuine screw up?
	•	Ineffective assistance of counsel cannot be based on a inferance drawn from inexperiance, lack of time to prepare, gravity of the charges, complexity of the defense, or accessibility of witnesses at trial. 
	▼	D must show that the deficient performance prejudiced the defense
	•	AND BUT FOR THE DEFICIENCY there is a reasonable probability that the results would have been different. 
	•	Errors were so serious as to deprive the D of a fair trial whose result is reliable
	▼	Standard is where the performance was "reasonably probably" prejudicial to the D
	•	reasonable probibility- the faith in the process has been undermined
	▼	Areas Presumed Prejudicial to the D
	•	Actual denial of council
	▼	constructive denial of council
	▼	council entirely fails to subject the case to the adversarial process
	•	where the council does nothing
	▼	Areas of Limited Presumption of prejudice
	▼	Actual conflict of interest
	•	Eg: Council reps D and an accomplice that turns states witness
	•	Actual Ineffectiveness
	•	Court can review either the performance prong or the prejudice prong in either order- it is not a 2 step process.
	▼	There is no right to a particular lawyer.
	•	The question is whether the lawyer they do have can render effective assistance. 
	▼	You have a right to proceed pro se - As long as you do so knowingly.
	▼	Requirements
	▼	The D must be competent to intelligentlly and voluntarily abandon the right
	•	NOT necessary that they be able to effectivly defend though- only knowingly abandon the right to council. 
	•	If this requirement is met - the court MUST allow them to proceed Pro Se
	▼	Violations of right to council generally
	•	If the D was entitled to a lawyer at trial and none was provided- there is an automatic reversal of the conviction even without any showing of specific unfairness in the proceedings- Gideon v Wainright.
	•	AT non-trial proceedings - harmless error rule applies- WADE- see below
	▼	Violations of right to Council during eye witness ID
	▼	Remedies of a 6th amend violation
	▼	If the out of court ID violates Due Process then the id it per se excluded- Gilbert Rule
	▼	HOWEVER- The out of court procedure does not preclude that witness from identifying the D at trial. 
	▼	Wade- if in-court ID is not FPT via clear and convincing evidence standard- ID is allowed.
	▼	Fruit of a different tree is ok.
	•	Challenge to the prosecutor is to show that the evidence of the ID came becasue the witness KNEW that the ID was correct because they saw them clearly ath the crime, knew who it was ect. and NOT as a result of the constitutionally tainted line up.
	•	If that happens, then an In court ID is allowed
	▼	Factors influancing independant source determination:
	•	Witness's opportunity to view the acts
	•	discrepancies between the pre-lineup description and the D's actual appearance
	•	ID of another person prior to the lineup
	•	A photo ID before the lineup
	•	Failure to ID the D on a prior occasion
	▼	Denial of Council in Non-trial settings
	▼	The error may be found harmless
	•	The conviction will not be overturned if the gov shows beyond a reasonable doubt, that the D would have been convicted w/o the ID. 
	•	Compare: Denial of Council at trial is a reversible error per se. 
	▼	The ID is not allowed if the ID is "Unreliable under the totality of the circumstances"- Not a rule - but a standard of evaluation.
	•	Each case must stand on its own facts.
	•	Very substantial risk of mis ID
	•	reliability is the linchpin.
	▼	What determines this
	•	How the other people look in relation to the alleged perpetrated
	•	only one person/ photo - inherantly suggestive
	•	police suggesting one person over the others.
	•	previous views of the defendant in another ID procedure
	•	process - witness sees the D in custody, in a prison jump suit ect.
	▼	Was it necessary to use suggestive procedure?
	•	A higher degree of suggestiveness will be tolerated if exigent circumstances exist.
	▼	Witness dieing in the hospital they bring in one person to the witness, she positivily ID's them
	•	Time was of the essence. The witness might have died - leaving them with no evidence
	•	Also - good for defendant - if he is exonerated quickly.
	▼	Was there an independent source for the witness's ID
	•	EG: The witness had a good long time to look at the perp.
	▼	Witness memory formation
	•	Emotional stimuli will affect memory retention.
	•	The more information given in a short period of time, the less retained
	•	Legnth of time between formation and recall
	▼	Post formation information
	•	How questions were asked. 
	▼	Factors affecting witness reliability
	•	opportunity to view D
	•	witness's degree of attention
	•	accuracy of prior descriptions
	•	Level of certainty at the time of the ID
	•	Length of time between the crime and the witness ID
	•	pressure or lack of, on the witness.
▼	Search and Seizure
	▼	4th Amend. Analysis
	▼	Was it done by a government actor?
	•	No- Not challengeable under 4th amend
	▼	Yes
	▼	Was there a reasonable expectation of privacy?
	•	Privacy is the central concern of search and seizure
	•	Courts consider the totality of the circumstances.
	•	NO- Not challengeable under 4th amend
	▼	Yes
	▼	Was there a warrant?
	▼	Yes
	▼	Was the warrant proper? or was the government agents reliance on the warrant in good faith?
	▼	Yes
	▼	Was the Warrant properly executed? Without unreasonable delay, after anouncement (unless officers or evidence would be endangered), and it properly described the person or place to be seized within its scope.
	•	Yes- Search is Valid
	•	No- was there an exception? See below.
	•	No- Was there an exception to the warrant requirement? See below
	▼	No-  Was there an exception to the warrant requirement?
	•	Old rule - ANY warrentless search was presumed to be unreasonable
	•	New - There is no presumption of reasonableness- lots of exceptions developed and they basically did away with the presumption of unreasonableness.
	▼	Warrant exceptions
	•	Incident to lawful arrest
	•	automobile search
	•	plain view consent
	•	stop and frisk (Terry stop)
	•	Hot pursuit
	•	Yes- Then search was valid.
	▼	No- Then the forth amendment was violated
	▼	Then is exclusion of the evidence required?
	•	Exclusion is the presumed remedy.
	•	If not a "search" or "seizure" then the evidence is admitted.
	▼	Was there a search
	•	If there is no search, then there is no 4th Amendment protection.
	▼	Administrative searches are searches-
	•	Even though the search may result in only civil penalties, any contriband seen in plain view may become the basis of a search warrant.
	•	4th amendment prohibits unreasonable searches (intrusions upon a persons privacy rights) and seizures (control by the government over a person or thing)
	▼	Scope of the items subject to search and seizure
	•	Instrumentalities of a crime- burglars tools
	•	fruits of a crime- stolen goods
	•	contraband- illegal drugs. 
	▼	the mere evidence of a crime-
	•	as long as probable cause exists to believe that the item is connected to criminal activity.- eg blood stained clothes
	▼	4th amend only protects against governmental conduct.
	•	This includes private parties opperating at police direction
	•	privatly paid police who are deputized members of the public police
	•	public school officials.
	▼	Was there a search: Was there a reasonable expectation of privacy
	•	before Katz the 4th amend only protected places enumerated in the amend. -eg private property. But the court changed direction by declaring that the amend "protects people, not places"
	▼	Katz
	•	A Conversation was ruled to be private
	•	Before Katz  conversations couldn't be "searched" or seized"
	▼	2 Step process
	▼	Did the defendant have a subjective expectation of privacy?
	▼	Factual inquiry.
	•	They look at the activities of the D when trying to determine what was going on. Look at the circumstances.
	•	This step is assumed most of the time.
	▼	Is society willing to recognize the expectation as reasonable?
	▼	How does the judge decide this?
	•	This is not a factual inquiry.
	•	This test is about as mushy as things get. 
	•	Defendant has the burden of proving the expectation was reasonable
	▼	Standing to challenge a search under 4th amend.
	•	You must have standing to challenge the search
	▼	You have standing if YOU have a legitimate expectation of privacy
	•	determined case by case on a totality of the circumstances basis.
	▼	You ALWAYS have standing  if
	•	The person owned or had a right to possession of the place searched
	•	the place seached was in fact the persons home- whether or not they owned or had a right to possession.
	•	the person was an overnight guest of the place searched - Minn. V Olsen. 1990
	▼	Legitimately on the premises alone is insufficient.
	•	Rakas- search of the car that the D's didn't own revealed a shotgun that no one claimed ownership of. serch was allowed because there was no expectation of privacy in another persons car.
	▼	Mere ownership of the property seized is also insufficient
	•	Rawlings v Kentucky- ownership of drugs in anothe'rs purse is not enough in totality of the circumstances test.
	▼	There is no legitimate privacy interests in contraband, and thus no standing.
	•	Drug dog sniff tests.  US v Place, or cocaine filed tests
	▼	Items held out to the public.
	•	there is no reasonable expectation of privacy in items held out to the public.
	▼	What is generally held out to the public
	•	handwritting
	•	sound of your voice
	•	telephone numbers dialed- pen registers- but the conversation is protected.
	•	bank records
	▼	movement of ones car
	▼	Knots Allowed
	•	A transmitter was placed in a drum, drum is placced in the car. They follow the car and monitor the car.
	•	They were only receiving information that would have otherwise been obtained by watching from another public place.
	▼	Karo Not allowed
	•	The can with a beeper goes in and out of multiple places, and followed it to a storage unit and then a new house, and the cops smelled smelled ether, and used that info for a warrant
	▼	The bottom line is that the use of the information revealed more than the location of the car
	•	It revealed information that they would not have otherwise received. 
	•	Magazines offered for sale
	▼	the smell of ones luggage
	•	Place.
	▼	Open fields doctrine/Curtilage
	•	Areas outside of the curtilage are held out to the public and are subject to search without violating the 4th amendment. 
	•	Marijuana growing behind a fence- open fields -no warrant requirement US v Oliver -1984
	▼	IN greenwood, the D voluntarily gave his trash to the trash collector 1988
	•	No warrant needed to search the trash - even if the bags are opaque. 
	▼	Trash collector seperated the bag of the D from the trash of the other defendant.
	•	Trash collector becomes an agent of the police
	▼	No expectation of privacy for trash on the street.
	•	its acessible to the public when its sitting in a public place.
	•	If you don't want your trash gone though by the police, then take it to the dump yourself.
	▼	Part of Curtilage? 4 factors
	•	proximity to the home
	•	whether it is included in an enclosure that surrounds a home eg a fence
	•	nature of the uses that the building is put to.
	•	steps taken to protect the area from observation
	•	Ultimately though- was the outbuilding so intimatly tied to the home that it should warrent 4th amend protections.
	▼	Fly overs
	•	police may generally observe from airspace open to the public
	▼	Riley
	•	Helicopter hovering at 400 ft above a house, and peering into a greenhouse, not a search.
	▼	Powerful cameras are allowed to be used, as long as its something generally available to the public, and the plane is in public airspace
	•	Dow Chem v US.
	▼	Thermal imaging of the home is not allowed.
	▼	Kyllo 2001
	•	Thermal imaging of a house is a search
	▼	It reveals information not available to the general public.
	•	But heat is being "Knowingly exposed to the public."
	•	BUT effect on a business is unclear but a warrantless hi tech search of business may be upheld. 
	•	Hi tech stuff is suspect- is it generally available to the public? Kind of the test - very iffy.
	▼	Contraband
	▼	no unconstitutional search when carried out by a drug sniffing dog US v Place
	•	BUT warrantless detention of luggage for an unreasonable time before being submitted to the sniff test rendered seizure invalid. 
	▼	Nature of the intrusion
	•	Reveals information that could not be known w/o physical intrusion.
	▼	When you speak- you are assumeing the risk that the person listening will communicate the info to the police.
	•	They can be wearing a wire- thats no search
	•	Bank records - you give your info to the teller - you assume the risk
	•	The numbers you dial on your phone are voluntarily given to the phone company.
	▼	Dogs sniffing is not a search.
	•	The only things the dogs sniff for is contriband - there is no expectation of privacy where you keep contriband.
	▼	Probable cause
	•	Based on facts and rational inferances based on those facts.
	•	Objective -reasonable person test. 
	▼	Was it Authoirized by a valid warrant
	▼	Generally, a warrant is required before a search or seizure may be conducted
	▼	Warrants must
	•	Be issued on probable cause
	•	Be supported by oath or affirmation
	▼	It must list with particularity the place to be searched and the things to be seized
	•	Particular enough to permit an officer with reasonable effort to assertain the place where the items are kept.
	•	Be issued by a neutral and detached magistrate. 
	▼	To search
	•	they have to be certain that contriband, fruit, evidence, instumentality. perpetrator of crime is present at the time of the serch
	▼	To Seize
	•	they have to be certain that the item is contriband, fruit, evidence, instumentality, of crime.
	▼	To arrest
	•	the person committed or is committing a crime
	•	searches w/o warrants violate to 4th amendment unless one of the six exceptions apply
	▼	If the police have a warrent, the search is presumptivly valid
	•	The burdeon is now on the D to prove that it is not reasonable
	•	If there is no warrent, then the burden is on the P to show that the search is reaonable
	▼	Probable Cause
	▼	How Much suspicion must exist to constitute probable cause
	•	Officers must present sufficient underlying facts and circumstances such that a reasonable person would conclude that seizable evidence would be found on the premises or the person to be searched.
	▼	Affidavids based on hearsay (informants) must show by a totality of the circumstances that there is a fair probability that the evidence sought will be found in a particular place. Illinois v Gates
	▼	Components considered are:
	▼	Credibility of the source
	•	Veracity of information of report in this case
	•	How the source knew.
	•	Everything the informant said need not be correct, - a totality of the circumstances test allows for some wiggle room.
	▼	2 Prong test abandoned in gates
	•	Credibility of the informant
	•	Reliability of the informant
	▼	They used to have to be applied mechanically, but gates said that if one is deficient, a strong showing by the other could make up for it.
	•	"the old test "impedes the task of law enforcement"
	▼	It makes it nearly impossible to use anonymous sources
	•	Anonymous sources cannot be verified for truthfulness or reliability.
	•	Anonymous tips, on the other side, can be used by corrupt officers to make it sound like a search is justified.
	•	Named informants are more reliable than anon because they are putting themselves out there for criticism
	▼	In gates, anon letter is detailed and predicted activities that an investigation proved true.
	•	The corroberation of the letters information with the actions that it predicted lends strong credibility to the source.
	•	Correct about somethings leads to the infferance that they are correct about other things.
	•	Do the facts plus rational inferences equal probable cause?
	•	Affidavids or sworn testimony must allege facts, not conclusions.
	▼	2 Step Process
	▼	Facts are presented to a Judge.
	•	Magistrate or Judge draw inferences
	▼	Mixed Question of Law and Facts
	•	Do facts viewed from the standpoint of reasonable officer amount to probable casue
	•	Practical - non technical analysis
	▼	P Cause is NOT "more likely than not"
	•	Its less
	•	Don't forget, lack of probable cause is not fatal after the fact- as long as there was reasonable reliance on a facially valid warrant- evidence obtained may be used, even though after the fact the warrant was found to lack probable cause.
	▼	Preciseness requirement
	▼	a warrant must describe with reasonable certainty the place to be searched and the items seized
	•	If it does not the warrant is unconstitutional even if the underlying affidavit gives the requisite detail≥
	•	Exception- Plain view
	▼	Neutral and detached magistrate
	•	Get a fee for each warrant issued is not neutral
	•	state attorney general is not neutral
	•	magistrates who participate in the search are not neutral
	•	A court clerk may issue warrants for minor offenses eg traffic tickets
	▼	Challenging the warrant
	▼	- must make a substantial showing  by a preponderance of the evidence of all of the following
	•	A false statement was included
	•	the statement was necessary to find probable cause
	•	the affiant knowingly or recklessly included the false statement
	•	ONLY statements made by the affiant may be challenged- not the informant.
	▼	Executing the Warrant
	▼	Only police may execute a warrant.
	•	Media may not accompany police in the execution of the warrant.
	•	Goes to resonableness.
	▼	Knocking and anouncing
	▼	Required for a warrant to be reasonable.
	▼	Except, based on reasonable suspicion-
	•	Possibility of physical violence
	•	Pursuit of a person who has escaped from custody
	•	reason to believe that evidence would be destroyed if advance notice was given.
	▼	There is NO blanket exception to knock and announce- EACH case must be justified by reasonable suspicion.
	▼	Richards v. Wisconsin
	•	Its a huge over genralization to make an exception for cases involving drugs.
	•	BUT If there is reasonable suspicion that knocking and anouncing will result in the destruction of evidence, they can skip it.
	▼	The ammount of time that the police have to wait at the door is not how long it takes for the person to reach the door, ITS HOW LONG THAT IT TAKES TO DESTROY THE EVIDENCE.
	•	If your looking for cocaine - not long. If you're looking for TV's- long time.
	▼	Violation of knock and announce are not remidied by the exclusionary rule.
	•	Remedy is CIvil rights claim.
	▼	Police have the right to detain those on the cite of a search warrant
	•	Why? prevents flight, ensures officer safety, and facilitates an orderly execution of the warrant.
	•	But there must be Prob Cause to search the individual people
	▼	Balancing test of Muehler v. Mena
	▼	Detention of all
	•	Across the board rule: Detention is Always valid when executing the search warrent
	•	Protection of the officers far outweighs the slight additional intrusion
	▼	Nature of Detention
	•	If its an accounting crime, detention is ok, but hand cuffs might not be
	▼	If there are drugs and guns, hand cuffs become acceptaible
	•	BUT the length of time spent in cuffs is inportant for the analysis
	▼	Q's During detention.
	▼	Just asking questions is not a search or seizure
	•	BUT maybe if the detention was prolonged because of the questions, then it would be a 4th amend violation
	•	As long as the questions are asked during the span of time that the search is going on its ok under the 4th Amendment
	▼	Unforseen Circumstances or Mistakes while executing the warrent.
	•	If the warrent is particular enough and the execution reasonable, then
	•	"Was the mistake objectivly understandable and reasonable?"
	▼	Time of service
	•	Search warrants should be executed w/o unreasonable delay. 
	•	During daylight hours, unless a nighttime search is explicitly authorized
	•	FRCP's require warrants to be executed between 6am and 10pm, unless reasonble cause is shown to the magistrate and the authorise otherwise. 
	•	Arrest warrants do not have this time of day exception. 
	▼	Third party premises and arrest warrents
	•	Generally, absent consent or exigent circumstances, a search warrant is required before police may enter a thrid parties home to arrest a person.
	▼	Reasonableness Clause/ Exceptions
	•	All searches must be reasonable, warrant or not.
	▼	Exceptions to the Warrant requirement.- Falls under reasonableness clause
	▼	Warrant-less evidentury searches are permitted
	▼	Searches incident to arrest
	•	Police need not think that the will find evidence of a crime- they can search whenever a suspect is placed under LAWFUL arrest- its for their safety.
	▼	Lawful arrest
	•	For an arrest to be lawful- there must be an arrest warrant, or the officer must have probable cause to arrest w/o a warrant. 
	•	if the arrest is made under a law that is found to be unconstitutional later on, the search is still valid, as long as the officer acted in good faith. 
	▼	It is entirely reasonable for the arresting offcier to search and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arresstee might reach in order to grab a weapon or evidentiary items must of course be governed by a like rule CHIMAL DOCTRINE
	•	the search prevents the concelement of destruction of evidence, and prevents them from securing a weapon to resist arrest or possibly escape.
	▼	It is not reasonable to search a whole house incident to arresting a person. People have a right to be secure in their homes, and an arrest warrant does not the same as a search warrant.
	▼	Protective Sweep - Maryland v. Buie
	•	The police can always do a cursory look into rooms adjacent to the room of the arrest.  
	▼	if its reasonable and there is articulable suspicion that someone else is present who would pose a danger, then the police can go anywhere in the house and look in places where a person could be.
	•	Can look in the closet
	•	Can't look in the kitchen drawers.
	•	Evidence seen during such a sweep is now in plain view, and as such it is seizable.
	▼	If the person is arrested outside the home it is not reasonable to search the house
	•	But if the person is allowed in briefly, they may then search any area in the lunging range as they move through the house, and seize anything that is in plain view. 
	▼	Robinson
	•	Search of an individual is AUTOMATICALLY justified after a legal arrest, regardless of the underlying crime that led to the arrest.
	•	"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4th amendment."
	▼	Search incident to arrest in a car.
	•	Court treats the entire passenger compartment as within lunging range, as chimel, and any search of that area is generally a valid search inciden to arrest.
	▼	NEW RULE ABOUT CARS- if the person is arrested driving, and they are handcuffed and in the police car, there is no longer the officer safety rational to search the car w/o a search warrant.  
	▼	Police may search only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of the arrest.
	•	Possible that a search of the entire car would be ok
	•	Not determined if it would be ok to search the trunk- or containers in the car.
	•	OLD RULE- everything in the car is within the wingspan of the arrested person- thus- the area can be searched regardless of the timing of the search. Belton
	▼	BUT if a person is stopped for a traffic violation and they are issued a ticket, there can be no search, EVEN IF the law allows the officer to arrest the person instead of issuing a ticket.
	▼	Knowles
	•	When a person is stopped for speeding and cited, the search of the car is unreasonable because the officer has already gathered all of the evidence to issue a citation. They can frisk the person (Terry), but not the search the car.
	▼	The search must be contemporaneous to the arrest.
	•	EXCEPT- inventory searches, valid reason for the delay
	▼	Automobiles  as long as probable cause exists to believe that the fruits instrumentalities, evidence of a crime, or contraband is in the vehicle
	•	PC may ripen as a result of observing the car after its stopped.
	▼	Cars are readily mobile
	•	Cars are mobile- warrants take time, so the police must be able search while the car is still in the jurisdiction.- this justifies a warrantless search of the entire automobile.
	•	Kind of an exigent circumstances thing- the mobility of the car creates an exigency.
	•	You can tow the car and search in the station too- that doesn't change the circumstances.
	▼	There is a lessor expectaion of privacy
	•	There is a privacy interest in cars, but their mobility gives them a lessor degree of the expectation of privacy than would be found in the home. 
	▼	Mobile home
	•	Still readily mobile and they are still open to state and federal inspections. Their is no different standard for mobile homes.
	•	Even if they are parked.
	•	The more that it is like a house the better the argument that there is a heightened expectation of privacy 
	•	If there is PC to believe that a stolen item is in a car, then they can search anywhere.
	•	The car must be capable of being mobile. If it has no engine- not mobile. No driver in it- its still mobile.
	▼	Container in a car
	•	Assume PC to search a car for a small object
	•	Then they can open the container in the car
	•	Generally police may search anywhere in a car that will contain the item that they have PC to search for. Looking for drugs? Glovebox is Ok. Looking for illegal aliens? trunk ok, but not glove box.
	•	Search need not be contemporanious- they can tow it to the impound and search there, but remember- there must be PC to search the area for an item that the area could contain.
	▼	Plain View - frequently misused doctrine
	•	The item must be in plain view AND its incriminating charachter must also be imediatly apparant
	▼	The officer must be lawfully located in a place from which the object can be plainly seen AND must have LAWFUL access to the object itself, AND IMEDITATLY know that the item is contraband
	•	Picking up the sterio to look at the serial number on the turntable IS a search.
	•	See maijuana through the window from the sidewalk- don't have access to the house, so you need a warrant to enter 
	•	See marijana in the curtlidge from standing on the sidewalk and can reach it, then they can take it.
	•	Plain touch/Smell the same thing
	▼	Certanty is not neccessary
	•	If in the officers reasonable judgement, the item is contriband- it may be seized if he is lawfully on the premises.
	•	Remember Hicks- you can write down the serial number of the sterio, but if you pick it up to look at the numbers then a search has occured and you need a warrant. 
	▼	Terry Stop- frisk
	•	requires articulable reasonable suspicion that the person is involved in criminal activity, and reasonably believe that the stopped person is armed and dangerous
	•	Totality of the circumstances considered
	▼	A person running from the cops in a high crime area is enough to arouse reasonable suspicion. 
	•	but this decission did not establish a per se rule about flight from the cops.
	•	the scope of a terry stop is limited to a pat down of the outer clothing
	▼	The stop must be reasonable in length cosidering
	•	the purpose of the stop
	•	reasonableness of time in effectuating that purpose
	•	reasonableness of the means of the investigation
	•	If the stop is unreasonably long, it will be considered an arrest and will be held invalid unless there is PC for an arrest.
	▼	The item must be discernible as a weapon or contraband based on the plain feel of it though the clothing
	•	Manipulating the item to determine that it is likely cocaine is not ok.
	▼	Consent
	•	In order for consent to validate a search that would otherwise violate the 4th amend, it must be voluntary and cannot be coerced.
	•	Voluntaryness is a question of fact
	▼	It doesn't have to  be knowing and intelligent
	•	They don't have to know that they have a right to say no.
	▼	This differs from trial rights- where you must make the decision intentionally relinquishing the right, knowingly and intentionally.
	•	The rights in a trial go to the core of the reliability of the trial. There is no question of reliability of the evidence in the case of a search.
	▼	The scope of a voluntary search is limited to the scope of the consent.
	•	consent to look for stolen tv's would not allow looking in drawers. 
	•	The scope is judged objectivily- would a reasonable officer think that searching this item is within the scope of the consent.
	•	Consent may be revoked- at which time the search must stop.
	▼	Consent must be given by a person who police reasoanbly believe has authority to give consent.
	•	thus the girl friend who holds herself out as living there can give consent, even if she actually doesn't live there - its the reasonable belief that they have  the power to consent
	▼	When two people are present and they both have equal status (two adults living in the same house) are present, and one objects and the other consents, then the police cannot enter
	•	Both must be present. and both must be of equal standing.
	▼	Authority to consent
	▼	Actual Authority
	•	You pay the rent, you have authority
	•	Resulted in the problem in Randolf- 2 people had actual authority and that authority was conflicting.
	▼	Apparent Authority.
	•	The person represents that they have authority.
	▼	Emergincies/ Exigent Circumstances
	▼	Hot Pursuit
	•	Warrantless searches in homes are presumptively invalid except for hot pursuit
	•	Exigencies exist " The 4th amendment does not require police to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." Hayden
	•	The scope maybe as extensive as reasonably necessary to prevent the suspect from resisting or escaping.
	•	Whether or not the person is armed has less to do with the entering in the house in the first place, than with the scope of the search once in the house.
	•	Exigent circumstance do not justify the warrantless and nonconsensual uninalysis test of a pregnant woman suspected for cocaine use. Ferguson v charleston
	•	Rational: There isn't enough time to get a warrent
	•	There is no general emergency exception
	▼	Level of suspision required
	▼	Need criminal PC for the intrusion
	•	Automobiles
	•	Hot Pursuit
	▼	No PC, but need criminal reasonable suspicion
	•	Terry stop and frisk
	▼	No Criminal PC or reasonable Suspicion, but still need particularized suspicion about something
	•	Administrative search EPA search
	•	Broad protective sweep
	•	Arrestees house w/ arrest warrant. 
	▼	None of the above, but they can intrude w/o ANY particularized suspicion
	▼	Inventory Search
	▼	Must follow regulations in place
	▼	Good regs allow for no discrestion in inventory searches
	•	-All vehilcles must be inventoried, all persons in jail must be inventories.
	•	Occur for administrative purposes.
	•	Searches incident to arrest
	•	Search incident to arrest in a car
	•	Limited protective sweep of a home
	•	When it is reasonable that any or all members of the car could have control of the drugs in the car, it is reasonable to arrest all of them .
	•	Remember It PROBABLE CAUSE
	▼	For 4th amendment purposes, the officers subjective motives DO NOT MATTER AT ALL.
	•	it is only the objective analysis that matter.
	▼	Entry into a third parties home to arrest a person requires a search warrent or an exception to the warrant requirements
	•	There must be a 4th amendment validation for everything the police do.
	▼	Passengers cannot be searched simply because they are passengers of the car, even if there is PC to search the car.
	•	Why? Because there is more of a privacy expectation in your person than in your car.
	▼	Containers
	▼	Container on a person
	•	can be searched incident to arrest.
	•	ANY CLOSED CONTAINER WITHIN LUNGING RANGE CAN BE SEARCHED, REGARDLESS OF WHOSE CONTAINER IT IS.
	▼	Container outside the lunging area
	•	If its outside lunging range, they cannot open the containter
	•	a container can only be searched if exigent circumstances are present.
	▼	Border Crossings and Checkpoints
	▼	Searches at the border are reasonable by virtue of the fact that they occur at the border.
	•	Consistent with longstanding right of the sovereign stopping and examining people comming into the country.
	▼	A two hour stop to take apart a gas tank is not unreasonable.
	•	A gas tank is solely a repository of fuel, how could it contain anything that would be private?
	•	The government has an "administrative interest" in searches at the border.
	•	No individualized suspicion required- they may be done without a warrant or probable cause even.
	•	Temporary border checkpoints not at the border, but miles past it, are also ok by virtue of their mandate to find contraband.
	▼	To strip search, seize for 16 hours, ect- reasonable suspicion is all that is needed.
	•	Searches beyond the scope of a routine customs search and inspection is justified at its inception if customs agents have reasonable suspicion to suspect alimentary canal smuggling. 
	▼	Checkpoints
	•	What is the programatic goal of the police as an agency of law enforcement? As long as the purpose is not to find evidence of a crime, but to focus on highway safety, it is ok. Its so easy to do it right. Say you are doing it for highway safety
	•	Roving checkpoints are more problemamitc than fixed ones- fixed checkpoints allow for less police discression, and thus abuse.
	▼	Sobriety - ok - Sitz
	▼	Primary purpose is highway safety
	•	If someone is driving while impared no one on the road is safe.
	•	What matters most is that the program was set up for highway safety
	▼	Drug Interdiction not ok Edmond
	▼	purpose Law enforcement
	•	There is no highway safety component
	•	What matters most is that the program was set up for drug interdiction
	▼	Information about week old crime - ok - Lidster
	•	The person being stopped is not under any suspicion of a crime.
	▼	Administrative Searches
	•	Goal cannot be criminal enforcement- its administrative in nature- the goal is to insure compliance
	▼	Camara - fountain of all admin searches -1967
	•	Housing code inspection. A warrant is needed, but it need not be based on criminal probable cause.
	▼	the warrent can be issued generally for all the buildings in an area based on some sort of showing
	•	Like maybe the age and condition of the buildings
	•	the buildings haven't been inspected in a long time.
	•	Show that the agency has a periodic inspection list and this group is at the top of the list
	•	Almost any rationonal scheme will work
	•	It could also be based on probable casue that the specific building is not in compliance.
	•	Inspection is not personal in nature, and limited to a specific goal.
	•	Blanket area inspection warrants are allowed without having to show probable cause.
	▼	Warrant-less admin searches
	▼	Business must be something called a pervasively regulated business to justify warantless admin searches. 
	•	DOES NOT mean that the biz is highly regulated
	▼	It DOES mean that the regulations are specific to a certain type of business
	•	Ex: Gun dealer, strip mining, liquor store, auto junkyard
	▼	If the biz is pervasively regulated then they can use search w/o a warrant when:
	•	there must be substantial gov interest
	•	The inspection must be necessary to further the regulatory scheme
	•	the inspection program, in terms of certanty and regularity, must provide a constitutionally adequate substitute for a warrent.
	▼	Need an admin warrant 2 basis
	•	There is probable cause to believe that there was a violation of an administrative rule
	•	Area Warrant that the time to seach has come due.
	▼	Suspisiousless Drug Testing
	•	A balance between the individual privacy and the need to test
	▼	Skinner- RR workers involved in an accident
	•	Rules required any employee involved in an accident to be tested. 
	•	No discrestion in the application, pervasivly regulated biz involed in safety
	▼	Customs workers who will contact drugs and guns -its ok to test
	•	there is a legitmat reason 
	•	Elected officials- no specific need to test because no safety and sensitive information involved 
	▼	Searches in Schools are different from all other type of searches
	▼	all that is needed is reasonable grounds to believe that the student violated school rules or any law
	•	because of the nature of the school environment.
	•	Probable cause is not required
	▼	Generally random drug testing of any student involved in extracuricular activities is permisible.
	•	It is unclear though- if the results of the test were turned over to law enforcement- if the test would be constitutional.
	▼	Vernonia
	•	Testing of student athletes
	•	Results are not used for law enforcement purposes
	•	Samples are collected in a manner that is consistent with being in a restroom
	▼	Balancing Test From Verninia compared to Pottawatomie
	▼	Nature
	•	Vernonia: Only Athlete tested
	▼	Pottawatomie: Everyone in extracurricular activities
	•	People being tested were not the "ring leaders" as in Vernonia.
	▼	Character
	▼	Neither case- the results are not used for law enforcement purposes.
	•	Probably the most important charachteristic of the cases.
	▼	Gov. Concern
	•	Natue
	•	imediacy
	•	Efficacy
	▼	Ferguson 
	•	Large part of it was law enforcement-
	•	Like Edmund? Road blocks for drug inderdiction
	▼	Consent to search
	•	Must be voluntary
	•	Can't be giving into an assertion of authority
	•	But it doesn't have to have a knowing consent- you don't need to know that you can refuse consent.
	▼	Was there a seizure?
	▼	Line between no seizure/stop/arrest.
	▼	A stop is a minimal kind of seizure
	•	You only get a frisk - if there is "reason to believe" that the person is ARMED- NOT FOR DRUGS/EVIDENCE- not as extensive as a search
	▼	An arrest requires either physical force or, where that is absent, submission to the assertion of authority.
	•	With an arrest you get to search
	•	You don't need an arrest warrant to arrest someone for a misdimeanor, or for a crime that if convicted of, would not result in jail time.
	•	Arrest can be done in public, and without a warrent, if there is propbable casue
	▼	If its not a seizure, then there is no 4th amendment implications.
	•	The D will want to argue that there was an arrest because there is a higher standard for arrests. 
	▼	A seizure: would a reasonable person in the D's position, under the totality of the circumstances, believe that they were free to leave? If not then it a seizure
	▼	Factors: Several officers, physical touching, display of a weapon, tone of voice
	•	Show of authority in some way restrains the liberty of the person.
	▼	Requirements for arrest
	▼	Characteristics of an arrest
	•	Submission to authority
	•	Movement of the arrestee, change in location
	•	Fingerprinting in the field
	▼	extending duration
	▼	There is no definite time
	•	Unnecessary delay, Longer than is necessary to complete the investigation
	▼	Requirements for stop
	▼	What is reasonable suspicion?
	▼	Its the totality of the circumstances
	•	As long as the circumstances relied are not prohibited by equal protection
	▼	Its completely innocent to pay for a plane ticket with cash, or to travel w/o luggage, or to be nervious on a flight.
	•	But all of these things combined constitutes reasonable suspicion.
	▼	Anonymous Tips
	•	A tip standing alone is not reasonable suspicion.
	▼	The tip should contain a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predictied
	•	This goes to "prove" the informants information.
	•	You don't need as much quantity, and quality, as in PC
	▼	You need reasonable suspicion to frisk
	•	Its a separate intrusion from the stop
	•	A frisk is not an automatic right when you stop.
	•	The officer must be able to point to seperate reasonable, articulable suspiscion that the person may be armed.
	▼	If a person is stopped driving a car, then they can frisk the passenger compartment if there is suspision that the person is dangerous.
	•	What the hell is frisking a car? They can look anywhere a weapon can be stashed
	▼	During a stop officers can ask for ID and other questions
	▼	If they refuse to answer their name-
	•	That could be a crime under revelvant statutes
	▼	If they refuse to answer other questions,
	•	That might be reasonable suspicion that the D committed a crime.
▼	Remidies for Due Process violations
	▼	Exclusionary Rule
	•	The exclusionary rule seeks to balance effective law enforcement and the protection of individual rights.
	▼	Why have an exclusionary rule?
	▼	Discourage police misconduct
	▼	In Hudson- The court says that this is the only real reason for the exclusionary rule- and its no longer a valid reason
	•	Police are now professional
	•	Judicial Integrity, Reliability of the system
	•	Societal Comfort, Reassures the public that the courts will not sanction unconstitutional action.
	▼	Who has standing to raise the exclusionary rule
	▼	Only those whose 4th amendment was violated
	•	Old rule was only "those who were agreived by the search"
	▼	Rawlings:
	▼	Police searched the house and womans purse, and Rollings put his drugs in her purse. Neither person lived in the house
	•	No expectation of privacy for Rollings' stuff in another person's purse.
	•	Rolling right to privacy was not violated- it was the womans purse, and her right to privacy.
	▼	The more of a material investment in the car, the more privacy in the car for the passenger- maybe
	•	If we split the gas cost, then you get the same expectation of privacy as the driver/owner. 
	▼	Visitors to the home- Can they raise the exlusionary rule?
	▼	Minnesota v Carter
	•	A business relationship- You can't raise the rule when the parties are only on the premises for the purose of doing biz because there is no reasonable expectation of privacy in that situation.
	▼	Effects
	•	Errorniously  allowed evidence requires reversal on appeal, unless the error is harmless.
	•	If there is a failure to object to the admited evidence, that failure usually bars a claim that the evidence should have been suppressed on appeal. 
	▼	Fruit of the poisonous tree
	▼	The question is not the suppression of the evidence seized in an unlawful search
	•	That goes without question
	▼	What the inquiry should focus on: was further evidence obtained based on the "poisonious" evidence obtained illegally
	•	And how connected to the poisonous fruit is this evidence?
	•	was the evidence obtained "by means sufficiently distinguishable to be purged of the primary taint" Wong Sun.
	•	does not apply to physical evidence that is found as a result of a miranda violation- Patane
	▼	Exceptions to the Exclusionary Rule
	▼	Non-trial proceedings.
	•	eg grand jury proceedings, preliminary hearings, and bail hearings.
	▼	also after the conviction has been entered
	•	during sentencing, or parole hearings.
	▼	The deterrent effect is minimal in these instances
	•	the evidence can't be used at trial, where the evidence courts toward a conviction- which is the only thing that matters for the Defendant.
	▼	Civil suits
	•	except quasi criminal suits like civil forfeiture arising from criminal conduct
	•	Definantly doesn't apply in tax suits or deportation actions.
	▼	Independent Source
	•	If the evidence is obtained by a source independent from the illegal search or seizure- then the evidence is admissible.
	▼	Murray
	•	Drugs were found in a warehouse. Warehouse searched illegally and pot bales found. They leave, and then obtain a search warrant without using any information gained in the illegal entry.
	•	The warrant was issued indepandantly from the illegal search.
	•	There is no but-for causeation arguement with independant source arguements
	•	You don't want to leave the police worse off
	▼	Two independant investigative teams working on the same thing, is a great example of perfect application
	•	But in Murray- it was the same team- which poses some more difficulties
	▼	The exclusionary rule would not further the interests of protecting individual privacy in this case.
	•	It is not in the interest to violate the 4th amendment if they can get the same info by legal means.
	•	And, by violating the 4th amendment, the officer doesn't get any more info. with which to apply for a search warrent.
	•	If its not going to deter the police, whats the point of using the rule?
	▼	Inevitable Discovery
	▼	Could also be called the hypothetical independant source doctrine
	•	Hypothetically -they would have found the evidence.
	•	How hypothetical can this be though?
	•	the burden is on the government to demonstrate by a preponderance of the evidence that the evidence would have ultimately been discovered by lawful means
	•	Good faith is NOT required for the inevitable discovery doctrine.
	▼	Nix v Williams
	▼	Search was called off because the body was found,
	•	So there was no independant source for finding the body
	•	If there was no violation the searchers would have found the body anyway.
	▼	The point is not that there could have been a independant search, but that there actually was a search in process.
	•	NO speculation as to the possibility of the actual search
	▼	Attenuation of Taint
	•	A free choice by the D can be viewed as a break in the causal chain- see Wong Sun.
	•	There IS a causal chain, but the voluntary act stretches the causal chain to make the use of the exclusionary remidy too attenuated to be rationally applied.
	▼	Miranda warnings per se are not sufficient to purge the taint. - Brown
	•	Holding otherwise would make miranda warnings a cure all for 4th amend violations.
	▼	Factors
	▼	Time period between illegality and aquisition of secondary evidence
	•	The longer the period- the more attenuated the connection
	▼	Occurrence of intervening Events
	•	Miranda warnings
	▼	Flagrancy of the initial illegality
	•	If the initial illegality is minor or unintentional, supression doesn't serve the ends of protection of individual rights. 
	▼	Good Faith Exception- applies to the 4th amendment
	•	Evidence gathered from acting in reasonable reliance on a search warrant issued by a neutral magistrate, but ultimately found to be unsupported by probably cause, is not suppressed with the exclusionary rule. - Leon
	▼	Just because the warrant is facially valid doesn't make it a good warrant
	•	The magistrate could have been acting outside their scope
	•	Why :Police shouldn't have to second guess judges when they make an otherwise valid determination.
	▼	Exceptions to the exception
	•	the affidavid supporting the warrant was so lacking in p/c that no reasonable officer would have relied on it.
	•	the warrant is defective on its face.
	•	the affiant lied or misled the magistrate
	•	the magistrate wholly abandoned his judicial role
	•	Clerical errors that show that there was an outstanding warrant for the person do not result in the supression of evidence - falls under good faith.
	▼	Impeachment
	•	Evidence seized in violation of the 4th amendment can be used to impeach the testimony of the defendant at trial, even if its excluded from the prosecution's case in chief.
	•	But, a defendant's witness cannot be impeached with the unlawfully seized evidence.
	▼	Policy Determinations
	•	Institutional Deterrence
	•	Individual Officer Deterrence
	▼	COST BENEFIT ANALYSIS of exclusionary rule
	▼	Cost
	•	Letting criminals go free
	▼	Benefit
	•	deterrence
	•	freedom
	•	privacy
	•	institutional integrity
	•	Don't forget- you aren't going to convict the wrong person over a 4th amendment violation.
▼	Miranda et al-  a prophylactic that protects the 5th amendment right against self incrimination. Made applicable to the states in Malloy v. Hogan.
	•	Miranda Right to Council and 6th Amend Right to council are 2 different concepts
	▼	If a person is not in custody the only protection is voluntariness of the confession
	•	Sources of Voluntariness-Due Process- 5th and 14th.
	▼	What is involuntariness? Compulsion
	•	Voluntariness : was the confession the product of an essentially free and unconstrained choice by its maker. 
	▼	It is more than a difficult choice.
	•	If you are called as a witness and take the fifth- a civil jury can hold that against you- and that kind of compulsion is ok
	▼	Physical Force
	▼	Brown v. Miss. - You can beat a confession out of a person
	•	It offends due process to use physical force to extract a confession
	•	The torture chamber may no be substituted for the witness stand
	▼	Psychological Pressure
	▼	Arizona v. Fulminante
	•	Was it an over bearing of Fulminante's will
	•	Does it matter that he didn't know that the informant was working for the FBI?- This is a miranda issue.
	•	The threat of physical force is pycological preasure, that can be pretty attenuated- as in Fulminante- and still be held to be involuntary
	▼	Spano v. New York
	•	Interogating a person for 19 hours, and attempting to elliciting the sympathy of a friend
	▼	Some kinds of trickery/ Deception
	•	Spano type deception is not allowed
	▼	Police saying that if you cooperate you will not be procesecuted, and if you dont then you will go to jail and loose your kids-
	•	The Prosecutor decideds to prosecute, the judge decides the sentance, and Childwelfare takes the kids. The police have no authority to do the things that they promised.
	•	Involuntary
	•	Police acting like a friend
	▼	Police saying that the accomplice has already confessed
	•	Both of those are voluntary.
	▼	Things to distinguish
	•	Lying about law v lying about facts
	•	Lying about rights
	▼	For it to be an involuntary confession the police must do SOMETHING- Connally
	•	RULE: Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.
	▼	Not conserned about free will per se- only constitutionally concerned with a state actor overbearing a persons free will.
	•	If the voice of god is overbearing your free will its ok.
	▼	If the person is mentally ill and they confess, then the confession stands
	•	BUT if you're hearing voices, are you really acting voluntarily? You have no free will. Doesn't due process require a confessionto be of a persons free will?
	•	BUT:  Where do we draw the line as to what is making you confess.
	▼	Why all of these rule
	•	People confess to things that they didn't do.
	▼	Miranda
	▼	What's the concern in Miranda
	▼	Majority is concerned that the voluntariness test of a custodial interogation is inherently bad
	▼	Interrogation is a pressure filled environment
	•	The Maj. assumed that coercive tactics are the norm
	•	Because they take place in isolation.
	•	We have no idea what actually happens in an interrogation
	•	But because the coercive info is in training manuals the majority assumes that this is the norm
	•	This is not a rebuttable presumption
	▼	The court doesn't say that those who follow the interrogation rules are being coercive
	•	Only that there is the potential for them to be coercive.
	•	The new rules remove the assumption of inherent coerciveness
	•	The purpose of the Miranda rights is to make the D aware of their rights, so that any waiver of those rights will be knowing and voluntary
	▼	It was not in doubt that there is a right to remain silent before 
	•	What is revolutionary is that the police must curtail their actions when it is envoked, and the police must tell the D their rights.
	▼	When do you have to give the rights
	•	Before interrogation
	•	NOT necessary like on TV to give at arrest.
	▼	Rights of Miranda
	▼	Right to Remain Silent
	▼	What does this encompass.
	•	Is a breath-a-lizer testamonial?
	▼	When you assert this- the interrogation must cease
	•	But how long to you have to wait?
	•	Forever? Or does the D need to constantly reaffirm the right?
	▼	Anything said can be used against the person
	•	When you assert this- the interrogation must cease
	▼	Right to an attorney during interrogation
	•	NOT the same as 6th amend right to council.
	•	They are supposed to observe any coercive acts by the police and testify to those acts if it comes to it. 
	•	Right to an attorney if you can't afford one
	•	The police can also give other "fully effective means" but it must be as effective at informing the D about their rights as these.
	▼	What is custodial mean for a custodial interrogation
	•	Is it the same as a non-arrest seizure under the fourth amendment?
	▼	What does an Interrogation mean?
	•	Questioning initiated by law enforcement officers?
	•	Is not questioning in the field by investigating officers .
	•	The incantation of the rights to EVERYONE is what levels the playing filed.
	•	There is no assum
	•	If the Miranda is improperly given- evidence obtained as a result of the interrogation can't be used against the D.
	▼	4 things could happen
	▼	D remains silent
	•	P could say that by staying silent they are implicating themself
	▼	D talks
	•	There is no assumption of a valid waiver just because the D talks
	•	There must be an explicit waiver and PROOF of the waiver
	▼	D asserts right to silence then talks
	•	How do you assert the right?
	•	What do we do with the statement made after they asserted the right.
	•	D asserts right to
	▼	Custody Requirement
	▼	When is a person in custody for the purposes for Miranda is different than a seizure for 4th amend
	▼	A person is in custody for the purposes of miranda if his freedom of movement has been limited by the police.
	•	Would a reasonable person under the circumstances feel that her freedom of action was denied in a significant way?
	•	The Question is not was this person free to leave- but what a reasonable person would think
	▼	Age should not be a consideration.
	•	It's not a question of age per se but what is obvious to the police.
	•	Did the police order the D to do something? That looks like a Custody concern
	▼	Not custody-
	•	Irs Interview, traffic stop, voluntarily going to the police station and being interviewed behind closed doors,
	•	The rules are here for the police to determine when custody is established.
	▼	Interrogation Requirement
	▼	Questioning initiated by law enforcement officers after a person has been taken into custody.
	▼	Express questioning or its functional equivalent.
	•	reflects a measure of compulsion above and beyond the compulsion of custody
	▼	words or actions by the police that the officer should know are reasonable like to illicit an incriminating response. From the the perspective of the D- Innis Rule
	•	the intent of the police is irrelivant.
	▼	Special knowledge by the police counts
	•	If they know that you have a soft spot for crippled children, then playing on you simpathy would count as interogation.
	•	If you can prove that there was intent to elicit a statement, then you can say that they reasonably knew that it would elicit a statement.
	▼	Mistakes in Miranda
	•	Was there any intent by the police to defraud?
	•	Did they "touch all of the bases" of miranda
	•	The fruit of the poisonous tree doctrine will be saved for real constitutional violations
	▼	A mistake in miranda does not mean there is actual coersion.
	•	It just means that there is a presumption
	•	THey are not inherently tainted if there is no coercion.
	•	When the official action was pursued in good faith the deterance rational loses much of its force.
	•	Were the warning effective to advice the D of his rights.
	▼	When the warnings were given.
	•	was the interogation in the same place? topic? legnth of break?
	▼	Seibert
	▼	Kennedy concurance
	•	Balance between why the police were doing this, and the benifit from doing it.
	▼	Patane
	•	The 5th amendment is not violated by the lack of miranda, but only by the introduction of the confession into evidence.
	•	ANY 5th amend rules are propholatics that have no bearing outside of a trial.
	•	failure to warn doesn't violate miranda either.
	•	because there is no constitutional violation to deter- there is not need to apply the fruit of the poisionious tree
	•	PLUS the gun is not testimonial evidence- which is what the 5th amend protects
	•	Fruit of the Poisionious tree analysis does not come into play when the unlawmul miranda action is led to physical evidence.
	▼	Miranda Exceptions
	▼	Impeachment
	▼	Prior statements, made before the issuance of a miranda warning, can be used to impeach the D testimony IF they take the stand in their own defense.
	▼	The D must take the stand
	▼	Something that they are not compelled to do.
	•	an absolute right.
	•	The jury cannot draw negative inferances from the D's decission not to take the stand.
	•	They must testify inconsistently with the previous statement. 
	▼	The dissent is concerned that this no longer make the decission to testify on their own behalf unfettered 
	▼	The D either has to take the stand to present some sort of evidence to their benifit-
	•	But they risk exposing themselves to impeachement.
	•	By allowing the statement to be used for impeachment, the courts are aiding and abetting the violation of miranda.
	•	This allows police misconduct to flourish
	▼	"Emergency"
	▼	The statements made to police, when they have not given miranda because the situation is an emergancy, are admitble
	•	The court wants a workable rule
	•	They don't want police to have to balance safety with the need to issue miranda rights.
	•	The availability of the exception does not depend on the motivation of the police.
	•	Police are part of the public
	▼	Questions presented during booking.
	▼	Non-testamonial evidence is not subject to miranda
	•	Physical charachteristics are non testimonial.
	•	Revealing a thought process is testimonial and subject to miranda
	▼	Valid Waiver- ALWAYS has to be voluntary knowing and intelligent
	▼	no right asserted
	▼	voluntary knowing intelligent waiver test
	•	just like the due process voluntariness, were they coerced into making the statement?
	▼	Burden is on the State to show that the waiver is voluntary by a totality of the circumstances.
	•	waiver can be infered from the D's actions and words
	•	if there is a question about the voluntaryness of the waiver- like the D is a minor or mentally ill, they only come into the analysis if the police take advantage of disability
	▼	"intelligent"
	•	knew that they had the right to remain silent, and the right to council.
	▼	"knowing"
	•	the wisdom of talking is not the question
	•	just knowing that you can not talk is what matters.
	•	As long as the D says they understand their rights, and no coercion is involved, then the waiver will be found to be voluntary. 
	▼	D asserts the right to silence- Mosley Protocol.
	▼	2 step inquiry results
	▼	did police scrupulously respect the right to silence
	•	interrogation must cease when someone asserts their right to silence.
	•	does not mean that they have to stop forever? - NO
	▼	Rule: " the admisability of statements obtained after the person in custody has decided to remain silent depends under miranda on whether his "right to cut of questioning" was "scrupulously honored"
	•	Was there a new and distinct experiance that seperated the two.
	•	If they change rooms, wait 2 hours, change personnel, give miranda again, and change topics then the re-questioning is OK.
	•	If so, was the future waiver voluntary knowing and intelligent.
	▼	D asserts miranda right to council- Edwards protocol
	▼	The interrogation must cease, and the D must not be made subject to further interrogation until his attorney has been made available to him, unless he initiates the discussions with the police.
	•	Further questioning on ANY topic is prohibited- Not crime specific.
	▼	How clear must a right to council be asserted?
	•	"The suspect must unambiguously request council" Davis v US
	•	"Maybe I should talk to a lawyer"- is ambiguious.
	•	if so, was the waiver voluntary knowing and intelligent.
	▼	the D initiated more questioning
	•	the standard for initiating the discussion is very low.
	▼	6th Amendment right to council
	•	The 5th Amend right to council under mrianda applies only in in-custodial interrogations
	•	If the person already has a lawyer, then the police cannot prevent the lawyer from meeting with them at a critical stage.
	▼	the 6th amend right to council applies to ALL EFFORTS by the police to deliberately  elicit statements from a person after formal criminal proceedings have been initiated
	•	Things get kinda subjective with this- how do we show what the police officers purpose was? This gets VERY tricky
	▼	Consequences of violating the 6th amned
	•	Exclusion of the statement
	▼	What about phsycal evidence
	•	Same FOTPT doctrine as in the 5th amendment
	▼	The 6th Amend is offense specific.
	•	If you are arrained on burglary, and then request council- Edwards controls and you have to stop questioning on the Burglary issue
	•	BUT the police CAN ask you about a murder that they also thing that you did
	•	WHY?
	▼	Miranda is not offence specific- any in- custodial interogations are under the pervue of mirnada THIS IS FUCKIN HARD
	▼	What constittutes the "same offence"?
	•	Is the same evidence being used to prove both crimes? Blockburger Test
	•	If so then the crime is the same offence
	▼	No request of counsel
	•	the 6th amend does not depend on its invokation
	•	it exists automatically at any critical stage
	•	asking for a lwyer affects what the police can do
	•	Request for counsel- but hasn't got one yet
	•	D already has a lawyer
	•	Cell mates taking to each other and government agents
	▼	Compusion to testify FIsher- NOTES
	▼	The contents of documents are not protected by the fifth amendment
	•	Unless there is a gun to the head situation
	▼	The act of being compelled to bring documents to a grand jury can be read as compulsion
	•	But this depends on how the subpeona is worded.
	•	Required production of a preexisting document does not violate the privilege against self-incrimination because it is not demanding testimony from a person.
	▼	Immunity
	▼	Use immunity- not constitutional
	•	Prosecutuion will not use the statemnet
	▼	Use plus derivitive use immunity - required by the 5th
	•	Will not use the statement or anything derived from the statement
	•	5th amend doesn't apply anymore because there is no longer any risk of self incrimination
	▼	can still prosecute if they have completly independant evidence
	•	very difficult to prove.
	▼	Transactional
	•	The Prosecutor promises not to prosecute any crime resulting from the transaction
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▼	Levels of Burdons of Proof
	•	Reasonable suspicion - a little more than a hunch
	•	Probable cause
	•	preponderance of the evidence 50.1%- Usually used in civil case
	•	clear and convincing
	•	Proof BRD - Beyond a reasonable doubt