[Note: Numbers in brackets refer to the printed pages of the Emanuel Law Outline where the topic is discussed.]
Emanuel Law Outlines
Criminal Procedure
Chapter 1
CONSTITUTIONAL
CRIMINAL PROCEDURE GENERALLY
I. STATE PROCEDURES AND THE FEDERAL CONSTITUTION
A. Meaning of "criminal procedure": The term "criminal procedure" refers to the methods by which the criminal justice system functions. Here are some of the topics that are usually included within criminal procedure:
1. The arresting of suspects.
2. The searching of premises and persons.
3. The use of electronic surveillance and secret agents.
4. The interrogation of suspects, and the obtaining of confessions.
5. The use of line-ups and other pre-trial identification procedures.
6. The Exclusionary Rule, and how it affects the admissibility of evidence obtained through methods that violate the Constitution.
7. The right to counsel.
8. Grand jury proceedings.
9. Bail and preventive detention.
10. Plea bargaining.
11. The right to a speedy trial.
12. Pre-trial discovery.
13. The Double Jeopardy clause.
B. Focus on U.S. Constitution: Many aspects of criminal procedure are regulated by the U.S. Constitution, particularly the Bill of Rights (the first ten amendments). As discussed below, most federal constitutional provisions concerning criminal procedure are binding on state proceedings as well as federal ones.
1. Non-constitutional issues: The states are free to develop their own procedures for dealing with criminal prosecutions, as long as these do not violate the federal constitution.
C. Applicability of Bill of Rights to states: In deciding how the federal constitution applies to state criminal prosecutions, the Supreme Court follows the "selective incorporation" approach. Under this approach, not all rights enumerated in the Bill of Rights are applicable to the state, but if any aspect of a right is found to be so necessary to fundamental fairness that it applies to the states, then all aspects of that right apply. Thus if a right is applicable in state courts, its scope is the same as in federal courts. [2]
1. All but two rights applicable to states: All Bill of Rights guarantees have been held applicable to the states, except for two. [5] The two Bill of Rights guarantees that have not been found applicable to the states are:
a. Bail: The Eighth Amendment's guarantee against excessive bail (so that apparently, a state may choose to offer bail, but may then set it in an "excessive" amount); and
b. Grand jury indictment: The Fifth Amendment's right to a grand jury indictment (so that a state may decide to begin a prosecution by using an "information" prepared by the prosecutor rather than a grand jury indictment).
D. Raising constitutional claims in federal court: A defendant in a state criminal proceeding can of course raise in the proceeding itself the claim that his federal constitutional rights have been violated (e.g., by the use against him of a coerced confession or the fruits of an illegal search and seizure).
1. Federal habeas corpus: But the state criminal defendant has in some situations a second chance to argue that the state trial has violated his federal constitutional rights: he may bring a federal action for a writ of habeas corpus. The defendant may bring a habeas corpus proceeding only after he has been convicted and has exhausted his state appellate remedies. The petition for habeas corpus is heard by a federal district court judge. If the judge finds that the conviction was obtained through a violation of the defendant's constitutional rights, he can order the defendant released (usually subject to a new trial). [5]
a. Limits: There are significant limits on the kinds of arguments a defendant can make in a federal habeas corpus proceeding. Most important, in search and seizure cases, if the state has given D the opportunity for a "full and fair litigation" for his Fourth Amendment claim (that is, the defendant got a fair chance to argue that evidence should not be introduced against him because it was the fruit of an illegal search or seizure), D may not make this argument in his habeas corpus petition, even if the federal court is convinced that the state court reached the wrong constitutional conclusion. [Stone v. Powell] [5]
II. STEPS IN A CRIMINAL PROCEEDING
A. Here is a brief summary of the steps in a criminal proceeding:
1. Arrest: When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are made without a warrant). Arrest usually involves taking the suspect into custody and transporting him to the police station. [7]
2. Booking: At the police station, the suspect undergoes "booking" which includes entering information about him into a police blotter, photographing and fingerprinting him. [7]
3. Filing complaint: A prosecutor now decides whether there is enough evidence to file charges; if so, the prosecutor prepares a "complaint." [7]
4. First appearance: After the complaint has been filed, the suspect is brought before a magistrate. In most states, this is called the "first appearance." Here, the magistrate informs D of the charges, notifies him that he has the right to counsel, and sets bail or releases D without bail. [7]
5. Preliminary hearing: If the case is a felony case, a "preliminary hearing" is held. Again, this is in front of a magistrate, and usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that D committed the crime charged. [8]
6. Filing of indictment or information: In the federal system, or in a "grand jury" state, the next step is for a grand jury to hear the prosecutor's evidence and to issue an indictment. In a non-grand-jury state, the prosecutor now prepares an "information," reciting the charges. [8]
7. Arraignment: After the indictment or information has been filed, D is "arraigned"; that is, he is brought before the trial court and asked to plead innocent or guilty. [8]
8. Pre-trial motions: Defense counsel now makes any pre-trial motions. [9]
9. Trial: Next comes the trial. If the charge is a felony, or a misdemeanor punishable by more than six months in prison, all states (and the federal system) give D the right to have the case tried before a jury. [9]
10. Sentencing: If D pleads guilty or is found guilty during the trial, he is then sentenced (usually by the judge, not the jury). [9]
11. Appeals: A convicted defendant is then entitled to appeal (e.g., on the grounds that the evidence admitted against him at trial was the result of an unconstitutional search). [9]
12. Post-conviction remedies: Both state and federal prisoners, even after direct appeal, may challenge their convictions through federal-court habeas corpus procedures. [9]
Chapter 2
ARREST; PROBABLE CAUSE;
SEARCH WARRANTS
I. GENERAL PRINCIPLES
A. Fourth Amendment: The Fourth Amendment to the U.S. Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [12]
B. Applies to both searches and arrests: The Fourth Amendment thus applies both to searches and seizures of property, and to arrests of persons. [13]
1. Invalid arrest no defense: Generally, the fact that D was arrested in an unconstitutional manner makes no difference: a defendant may generally be tried and convicted regardless of the fact that his arrest was made in violation of the Fourth Amendment. [13] However, when evidence is seized as part of a warrantless search conducted incident to an arrest, the evidence will be excluded as inadmissible if the arrest was a violation of the Constitution (e.g., the arresting officer did not have probable cause to believe that D had committed a crime). [13]
2. Probable cause for issuance of warrant: Where a search or arrest warrant is issued, the Fourth Amendment requires that the warrant be issued only based on "probable cause." This requirement is quite strictly enforced.
3. Where warrant required: A warrant is usually required before a search or seizure takes place, unless there are "exigent circumstances." An arrest warrant, by contrast, is usually not constitutionally required.
4. Search must always be "reasonable": Whether or not there is a search warrant or arrest warrant, the arrest or search must not be "unreasonable."
5. Probable cause for warrantless search or arrest: But there is no requirement in the Fourth Amendment that a warrantless search or seizure take place only upon probable cause. This is why police may conduct a brief "stop and frisk" even without probable cause: they are making a Fourth Amendment "seizure," but merely need some reasonable suspicion, not probable cause. (See Terry v. Ohio, discussed below.)
II. AREAS AND PEOPLE PROTECTED BY THE FOURTH AMENDMENT
A. Katz "expectation of privacy" doctrine: A Fourth Amendment search or seizure only takes place when a person's "reasonable expectation of privacy" has been violated. [14] [Katz v. U.S.]
1. Waiver of privacy right: A person's conduct may mean that he has no reasonable expectation of privacy in a particular situation. If so, no Fourth Amendment search or seizure will result, even if the police are doing something which a non-lawyer would think of as being a "search" or "seizure."
Example: D puts some papers into a public trash bin, unaware that the police are watching his conduct through binoculars. Because a person who disposes of trash normally does not have a "reasonable expectation of privacy" as to the trash, the police do not commit a Fourth Amendment search or seizure when they go through the trash bin's contents and remove the papers belonging to D (and use these in a subsequent prosecution of D).
a. Contexts: Some types of evidence which are likely to be found not protected by any "reasonable expectation of privacy" are: (1) abandoned property, such as trash; (2) things that can be seen from an aerial overview, or from the perspective of a person stationed on public property (e.g., a police officer stands on a sidewalk and looks through binoculars into a window at the front of D's house); (3) things a person says or does while in public (e.g., D1 talks to D2 in a restaurant, while a police officer is eavesdropping nearby); and (4) information the police learn by use of other senses while the police are in a place they have a right to be (e.g., the police use dogs to smell luggage in airports and, thus, detect drugs).
2. Significance of trespass: If the police have committed a trespass or a physical intrusion against a person's property, their conduct is more likely to be found to violate the person's reasonable expectation of privacy than if no trespass or physical intrusion takes place. [15]
Example: Border guards walk onto a bus (which they have a right to do), and then squeeze each passenger's luggage in the overhead luggage rack. Because this squeezing is a physical intrusion, it violates the luggage owner's reasonable expectation of privacy (and is therefore a Fourth Amendment search). That's true even though there would not have been a Fourth Amendment search had the police merely looked at the luggage from the aisle. [Bond v. U.S.] [15]
a. Presence or absence of trespass not dispositive: But presence or absence of physical intrusion or trespass is just one factor -- it's not dispositive. So the "reasonable expectation of privacy" rule means that police conduct may still be a Fourth Amendment search or seizure even though the police do not commit a trespass -- if the facts are such that D had a reasonable expectation that his possessions, conduct or words would remain private, the absence of police trespass will be irrelevant. [16]
Example: In Katz, supra, FBI agents placed electronic eavesdropping equipment on the outside of a public telephone booth from which D, a bookmaker, conducted his business. Held, even though D made his phone calls on public property, and the agents did not commit trespass in installing their devices, D's reasonable expectation of privacy was violated, so the agents conducted a Fourth Amendment search. "The Fourth Amendment protects people, not places."
B. Standard for determining: For the defendant to get Fourth Amendment protection in a particular situation, two tests must be satisfied: (1) the person must show an actual, subjective, expectation of privacy; and (2) the expectation must be one that society recognizes as being "reasonable."
C. Curtilage: The "reasonable expectation of privacy" concept intersects with the concept of "curtilage." The curtilage of a building typically refers to the land and ancillary buildings that are associated with a dwelling. In the case of a typical private house, for instance, the front and back yard and garage are all parts of the curtilage. [16]
1. Significance of curtilage: In general, a person has a reasonable expectation of privacy with respect to the curtilage, but not with respect to open fields outside the curtilage. (This is always subject to the exception that a person does not have a reasonable expectation of privacy as to things that can be seen from public property.) [17 - 18]
Example 1: D fences in his back yard with a 10-foot high wall, and grows marijuana in the back yard. Officer climbs over the wall and takes photos of the marijuana bushes. Since the back yard is part of D's curtilage, he has a reasonable expectation of privacy with respect to that area, and Officer has carried out a Fourth Amendment search (which will be invalid unless done with probable cause, and which may be invalid because no warrant was procured).
Example 2: D owns a 100-acre farm, with a farmhouse near one edge. D grows marijuana in the very middle of the 100 acres. The fields (except perhaps those that are immediately adjacent to the farmhouse) are not part of the curtilage. Therefore, if Officer enters D's property and photographs the marijuana plants, he is not infringing on D's reasonable expectation of privacy, and is thus not committing a Fourth Amendment search. This is probably true even if D has fenced in the entire 100 acres, and placed "No Trespassing" signs throughout. [cf. Oliver v. U.S.] [17]
D. The plain view doctrine: In general, the police do not commit a Fourth Amendment search where they see an object that is in the plain view of an officer who has a right to be in the position to have that view. This is the "plain view doctrine." [18]
Example: While Officer is walking down the street, he happens to glance through the picture window of D's house. He spots D strangling V to death with a stocking. Because D's conduct took place in "plain view" of Officer -- that is, Officer perceived the conduct while being in a place where he was entitled to be -- Officer can give testimony at D's trial about what he saw, with no Fourth Amendment problem. By contrast, if Officer had without a warrant secreted himself in D's house, then observed the murder, Officer would not be permitted to testify about what he saw, because the view would not have occurred from a place from where Officer had a right to be.
1. Distinguish from seizure: The fact that the police may have a plain view of an item does not mean that they may necessarily seize that item as evidence. Unless the officer is already legally in a place where he can touch the item, the fact that he sees it will not dispense with the need for a warrant to seize the item. (Example: On the facts of the above example, the fact that Officer has seen D strangle V with a stocking does not automatically entitle Officer to enter D's house without a warrant and to seize the stocking.) [19]
2. Use of mechanical devices: The "plain view" doctrine will often apply where the police stand on public property, and use mechanical devices to obtain the view of D or his property. [19]
a. Flashlights: Thus if a police officer, standing on public property, uses a flashlight to obtain a view of D or his property, this will nonetheless be a "plain view" and will, therefore, not be a Fourth Amendment search. [Texas v. Brown]
b. Electronic "beeper": Similarly, the police may attach an electronic "beeper" on a vehicle, and use the beeper to follow the vehicle -- this does not violate the driver's reasonable expectation of privacy, and thus does not constitute a Fourth Amendment search. [20]
3. Aerial observation: When the police use an aircraft to view D's property from the air, anything the police can see with the naked eye falls within the "plain view" doctrine (as long as the aircraft is in public, navigable, airspace). [California v. Ciraolo; Florida v. Riley] [21 - 23]
4. Use of other senses: Probably the same "plain view" rule applies to senses other than sight (e.g., touch, hearing or smell).
a. Smell: For instance, if a police officer (or a dog being used by an officer) smells contraband while standing in a place where he has a right to be, no Fourth Amendment search has taken place.
b. Touch: Similarly, there's probably a "plain touch" doctrine. For instance, if an officer is conducting a legal pat-down of a suspect under the "stop and frisk" doctrine (see below), and touches something that feels like contraband, the officer may probably seize it under a "plain touch" analog to the plain view doctrine. [23]
i. Police must have a right to touch: But this "plain touch" doctrine applies only if the police have the right to do the touching in the first place (just as the "plain view" doctrine applies only where the police have the right in the first place to be in the position from which they get the view). [23]
Example: A U.S. Border Guard gets on a bus (as he has a statutory right to do), then squeezes the luggage of every passenger that's located on the overhead storage rack. When he squeezes a soft suitcase owned by D, he feels a brick-like substance. That causes him to suspect illegal drugs, so he opens the suitcase and indeed finds narcotics. Held, for D: because the agent didn't have the right to squeeze D's luggage in the first place (the squeezing violated D's reasonable expectation of privacy), the agent wasn't entitled to act on the suspicions that he developed from the squeezing, and therefore didn't have probable cause to open the suitcase. [Bond v. U.S.]
5. Police on defendant's property: The plain view doctrine applies not only where the police obtain a view from public property, but also where they are lawfully on the owner's property. [24]
Example: The police come to D's house to make a lawful arrest of him. Any observation they make while in the ordinary process of arresting him does not constitute a Fourth Amendment search. (But this does not allow the police to open closed containers or packages while they are making the arrest, or even move items to get a better view -- this would not fall within the plain view doctrine, and would be a Fourth Amendment search.)
E. Transfer to third person: The fact that D has transferred property or information to a third person may indicate that D no longer has a reasonable expectation of privacy with respect to that property. [25]
1. Phone numbers: For example, a person who makes a telephone call in effect transfers to the local telephone company knowledge of the number called. Consequently, the person has no expectation of privacy with respect to those phone numbers, and the police may subpoena phone company records to determine what numbers were called (though not the contents of the conversations). [25]
F. Trash and other abandoned property: Trash or other abandoned property will normally not be material as to which the owner has a reasonable expectation of privacy. Therefore, when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that trash without a warrant. [California v. Greenwood] [29]
1. Trash on one's own property: But if the owner puts his trash out for collection not on the public street or sidewalk but instead on a portion of his own property (and the trash collector comes onto the property to retrieve it), probably the police may not enter D's property to inspect the trash. (But they could wait until the collector collects the trash, and search it at the street.) [29]
G. Some special contexts:
1. Jail cell: A prisoner has no legitimate expectation of privacy in his prison cell. Thus even if an inmate shows that a guard has without justification searched the inmate's personal possessions that are highly unlikely to relate to security issues, the inmate has not made out a Fourth Amendment claim. [Hudson v. Palmer] [30]
2. Guests: Guests in a person's house may or may not have a legitimate expectation of privacy in the premises being visited.
a. Overnight social guest: An overnight social guest normally has a legitimate expectation of privacy in the home where he is staying. Therefore, the police may normally not make a warrantless arrest or warrantless search of the premises where D is staying as an overnight guest. (But if the owner of the premises consents to a search, the guest is out of luck.) [Minnesota v. Olson] [31]
b. Social guest not staying overnight: A social guest who is not staying overnight probably also has a legitimate expectation of privacy in the premises, though the Supreme Court has not definitively decided this question yet.
c. Business guest: A guest who is at the premises on business is less likely than a social guest to be found to have a legitimate expectation of privacy in the premises. Where the business visit is a relatively brief one, the court is especially likely to find that there is no legitimate privacy expectation. [31]
Example: D visits X's apartment for a couple of hours, for the purpose of bagging cocaine that D and X will later sell. The police snoop while the visit is going on. Held, the shortness of the visit and the business-rather-than-personal nature of what D did at the apartment meant that D had no legitimate expectation of privacy in the apartment. Therefore, D's Fourth Amendment rights couldn't have been violated, even if X's rights were violated. [Minnesota v. Carter] [31]
III. PROBABLE CAUSE GENERALLY
A. Where requirement of probable cause applies: The requirement of "probable cause" applies to two different situations: (1) before a judge or magistrate may issue a warrant for a search or arrest, she must be satisfied that probable cause to do so exists; and (2) before the police may make a warrantless search or arrest (permissible only in special circumstances described below), the officer must have probable cause for that search or arrest. [33 - 34]
1. Source of requirement: Only case (1) above -- the requirement of probable cause prior to issuance of a warrant -- is expressly covered in the Fourth Amendment. But the Supreme Court has, as a matter of constitutional interpretation, held that probable cause must exist before a warrantless search or arrest as well, to avoid giving the police an incentive to avoid seeking a warrant.
B. Requirement for probable cause: The meaning of the term "probable cause" is not exactly the same in the search context as in the arrest context.
1. Probable cause to arrest: For there to be probable cause to arrest a person it must be more likely than not that:
a. a violation of the law has been committed; and
b. the person to be arrested committed the violation. [34]
2. Probable cause to search: For there to be probable cause to search particular premises, it must be more likely than not that:
a. the specific items to be searched for are connected with criminal activities; and
b. these items will be found in the place to be searched. [34]
C. No admissibility limitation: Any trustworthy information may be considered in determining whether probable cause to search or arrest exists, even if the information would not be admissible at trial. [34]
D. Only evidence heard by magistrate used: Probable cause for the issuance of a warrant must be judged only by reference to the facts presented to the magistrate who is to issue the warrant. (Usually, information for a warrant will be in the form of a police officer's affidavit, not oral testimony.) [35]
Example: Officer asks for a warrant to search Dwight's apartment for the fruits of a recent specified burglary. Officer's supporting affidavit does not mention to Magistrate the basis for Officer's belief that such fruits will be found there. Magistrate grants the warrant, the search takes place, fruits of the burglary are found, and Dwight is tried for the burglary. At Dwight's trial, Dwight probably can successfully move to have the fruits of the search excluded, because the Magistrate was not presented with specific facts that would have given Magistrate probable cause to believe that the fruits would be found at Dwight's premises.
1. Perjured affidavit: If D can show, by a preponderance of the evidence, that affidavits used to obtain the warrant contained perjury by the affiant, or a "reckless disregard for the truth" by the affiant, the warrant will be invalidated (assuming that the rest of the affidavit does not contain materials sufficient to constitute probable cause). [Franks v. Delaware] But D can't knock out the warrant merely because it contains inaccurate material; he must show actual perjury or reckless disregard of the truth by the affiant himself (not merely by the affiant's sources, such as informers). [35]
a. Honest police error: So if the police make an honest error -- they honestly and reasonably, but erroneously, believe certain information and use it in affidavits to get a warrant -- the warrant will not be rendered invalid when the error later comes to light. [Maryland v. Garrison] [36]
IV. PARTICULAR INFORMATION ESTABLISHING PROBABLE CAUSE
A. Information from informants: When the information on which probable cause is based comes from informants who are themselves engaged in criminal activity, courts closely scrutinize the information. Whether the informant's information creates probable cause for a search or arrest is to be determined by the "totality of the circumstances." [Illinois v. Gates] [38]
1. Two factors: The magistrate should consider two factors in evaluating the informant's information: (1) whether the informant is a generally reliable witness; and (2) whether facts are set forth showing the informant's "basis of knowledge," that is, the particular means by which the informant came upon the information which he supplied to the police. [38 - 41]
a. Strong factor can buttress weak factor: But a strong showing on one of these factors can make up for a weak showing on the other one. (Example: If a particular informant is known for being unusually reliable, his failure to set forth the basis of his knowledge in a particular case will not be a bar to a finding of probable cause based on his tip.) [40]
b. Prediction of future events: Also, if later events help corroborate the informant's story, these events can be combined with the informant's story to establish probable cause, even though neither by itself would suffice. [40]
B. Non-criminal sources: Where the police procure information from non-criminal sources (e.g., ordinary citizens, victims of crime, etc.), the courts are more lenient concerning the information than where it comes from, say, informants who are themselves criminals. [42]
1. Other police officers: But where an officer making an affidavit for a warrant (or making a warrantless search or arrest) acts in response to statements made by other police officers, probably the arrest or search is valid only if the maker of the original statement acted with probable cause. (Example: The County Sheriff broadcasts a bulletin stating that D1 and D2 are wanted for breaking and entering. Officer, a city police officer, hears the bulletin, and without knowing anything else, arrests D1 and D2, who happen to live on his beat. Probably, probable cause for the arrest will be found only if the County Sheriff himself had probable cause to make the arrest.) [43]
V. SEARCH WARRANTS -- ISSUANCE AND EXECUTION
A. Who may issue: A search warrant must be issued by some sort of judicial officer, usually either a judge or a magistrate. (We'll use the term "magistrate" here.)
1. Neutrality: The magistrate must be a neutral party, detached from the law-enforcement side of government. [44]
B. Affidavit: Normally, the police officer seeking a search warrant must put the facts establishing probable cause into a written, signed, affidavit. [45]
C. Ex parte nature of warrant: The proceeding for issuing a warrant is ex parte. That is, the suspect whose premises are to be searched does not have the opportunity to contest the issuance of the warrant; only the police officer's side of the story is heard by the magistrate. (However, the suspect, if he becomes a criminal defendant, will eventually have a chance to show, at a suppression hearing, that the warrant was issued without probable cause.) [46]
D. Requirement of particular description: The Fourth Amendment requires that a warrant contain a particular description of the premises to be searched, and the things to be seized. This means that the warrant must be specific enough that a police officer executing it, even if she had no initial connection with the case, would know where to search and what items to seize. [46 - 47]
1. Description of place: The description of the place to be searched must be precise enough that the officer executing the warrant can figure out where to search. For instance, if the search is to be in an apartment building, the warrant must probably contain the name of the occupant, or the number of the particular apartment, not merely the address of the entire building. [46]
2. Things to be seized: The things to be seized must also be specifically identified in the warrant. [46 - 47]
a. Not such a strict requirement: However, this requirement is not very strictly interpreted today. (Example: The warrant refers to a particular alleged crime of selling real estate by false pretenses. The warrant then authorizes a search for various types of documents, "together with other fruits, instrumentalities and evidence of [this particular] crime" but does not specify anything about these other fruits or instrumentalities. Held, the warrant is not fatally vague. [Andresen v. Maryland]) [46]
b. Contraband: Contraband (property the possession of which is a crime, such as illegal drugs or outlawed firearms) does not have to be described as particularly as material which is innocuous on its face -- the officer executing the search is presumed to be able to identify contraband by its very nature. [47]
E. What may be seized: Any item that is the subject of a valid search warrant may be seized by the police executing the warrant. [47]
1. Incriminating evidence: In particular, this rule means that even items whose only interest to the police is that they incriminate the defendant may be seized. [Warden v. Hayden] [47 - 49]
2. No Fifth Amendment interest: Even items, such as documents, that contain incriminating statements made by the defendant may be seized -- this does not violate the defendant's Fifth Amendment privilege against self-incrimination. (Example: Police, executing a valid warrant, seize business records from D's office. These records contain incriminating statements made by D. Held, seizure of these records did not violate the Fifth Amendment, even though it might have been a violation of D's Fifth Amendment rights to have required him to produce these records under a subpoena. [Andresen v. Maryland]) [49]
F. Warrants against non-suspects: The Fourth Amendment permits searches to be made of the premises of persons who are not criminal suspects, if there is probable cause to believe that the search will produce evidence of someone else's crime. [49]
1. Subpoena not necessary: Such a search of a non-suspect's premises may be made even if a subpoena would be equally effective. [Zurcher v. The Stanford Daily] [49]
G. Execution of warrants: The Fourth Amendment requires that the procedures which the police use in carrying out a search not be "unreasonable." Thus in general, the police may not behave in an unduly intrusive manner. [50]
1. Entry without notice: As a general rule, the officer executing the warrant must announce that he is a law enforcement officer, that he possesses a warrant, and that he is there to execute it. Thus usually, the police may not forcibly break into the premises to be searched unless they have first announced their presence. [51]
a. Preventing the destruction of evidence: However, the Supreme Court has recognized at least one exception: officers may constitutionally enter without first identifying themselves if the circumstances pose a threat of immediate destruction of evidence. (Example: D is a narcotics suspect, believed to be carrying a small amount of narcotics. He eludes police shortly before they come to arrest him at his house. Held, the officers' suspicion that D would probably destroy the narcotics by, for instance, flushing them down the toilet, justified the police in breaking into the house without first identifying themselves or ringing the doorbell. [Ker v. California]) [52]
b. Physical danger to police: Similarly, lower courts have held that the possibility of physical danger to the police sometimes justifies unannounced entry. (Example: The police have reason to think that D has a gun, and won't be "taken alive." They can probably break in without first knocking or announcing themselves.) [52]
2. Where no response or entry refused: If the officer identifies himself, and is then refused entry (or gets no response), he may use force to break into the premises. [53]
3. Search of persons on premises: Assuming that the police have only a search warrant, and not an arrest warrant (or probable cause to arrest anyone), the police may not automatically search everyone found on the premises. [53]
a. Named items on person: If the police have probable cause to believe that an individual has on his person items which are named in the search warrant, they may search him.
b. Person attempting to leave: Similarly, if a person attempts to leave during a premises search, and the items being sought are of a type which might be easily carried away, the police may probably temporarily detain the person to make sure he is not carrying the items away. [53]
c. Persons unrelated to search: But where a person simply happens to be on the premises to be searched, and appears not to have any connection with the criminal activity giving rise to the search warrant or with items mentioned in the warrant, that person may not be searched or detained. [Ybarra v. Illinois] [53]
4. Restricted area of search: In executing a search pursuant to a warrant, the police must confine their search to the area specified in the warrant, and they must look only in those places where the items sought might possibly be concealed. (Example: If the police are looking for a full-size rifle, they may not look into drawers which are too small to contain such a rifle.) [54]
5. Seizure of unnamed items in "plain view": If the police are properly conducting a search, and come across items that are not listed in the warrant (but that appear relevant to a crime), the police may generally seize the unlisted items. This right is an aspect of the "plain view" doctrine. [54 - 55]
a. Incriminating evidence: The evidence must be sufficiently connected with criminal activity that a warrant could have been procured for it.
i. Unrelated items: The items discovered in plain view don't have to relate to the same criminal activity that gave rise to the warrant, as long as there is probable cause for the seizure of these new items. (Example: If the police are executing a warrant naming stolen property, and they come upon illegal narcotics, they may seize the narcotics even though they have nothing to do with the stolen property charge.)
b. Inadvertence not required: It is not required, for application of the plain view doctrine, that the police's discovery of an item in plain view be "inadvertent." [Horton v. California] (Example: When police apply for a warrant to search D's home in connection with a robbery, they have a description of the weapons used. But they get a warrant authorizing the search only for robbery proceeds. While executing the warrant, they come across the weapons. Held, the police could constitutionally seize the weapons under the plain view doctrine, even though the discovery of the weapons was not "inadvertent." [Horton, supra.]) [55]
6. Bodily intrusions: A search warrant can be issued for search of a person, rather than a place. Such a bodily search (whether done pursuant to a search warrant or not) must of course be "reasonable." In general, courts measure reasonableness by weighing the individual's interest in privacy against society's interest in conducting the search. [55 - 56]
a. Allowable procedures: Thus the forcible taking of blood from a drunk-driving suspect, and the use of x-rays and stomach pumping to obtain evidence that D is concealing drugs in his stomach, have been held to be "reasonable" and therefore allowable.
b. Surgery: On the other hand, it is not reasonable to place D under a general anesthetic and to remove a bullet lodged deep in his chest, in order to show that D was involved in a particular robbery. [Winston v. Lee]
H. "Good faith" exception: Normally, if a search warrant is invalid (e.g., it is not supported by probable cause), any search done pursuant to it will be unconstitutional, and the evidence will be excluded at trial. However, if the police reasonably (but erroneously) believe that the warrant which they have been issued is valid, the exclusionary rule will not apply. (See U.S. v. Leon, discussed in the treatment of the exclusionary rule below.) [56]
Chapter 3
WARRANTLESS ARRESTS AND SEARCHES
I. INTRODUCTION
A. Warrant not always required: The Fourth Amendment mentions warrants specifically, but does not actually require warrants -- the amendment merely says that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." So going by the literal text of this amendment, a warrant might never be constitutionally required.
1. Judicial interpretations sometimes requires: But the Supreme Court has interpreted the Fourth Amendment to sometimes require a warrant. In very general terms, the rules for when a warrant is required may be summarized as follows:
a. Arrest warrants: An arrest warrant will rarely be required. Only when the police need to enter a private home to make the arrest, and there are no exigent circumstances, does the Fourth Amendment require the police to procure an arrest warrant before they make the arrest. [68]
b. Search warrant: But just the converse is true in the case of a search: the general rule is that a warrant is required. Only if some special exception applies will the requirement of a search warrant be dispensed with. Some of the more common exceptions are:
i. A search incident to a valid arrest;
ii. A search motivated by exigent circumstances (e.g., to avoid destruction of evidence);
iii. Certain types of automobile searches (e.g., a search of a car when the driver is arrested and both driver and car are taken to the police station);
iv. Searches done after the person to be searched or the owner of the property to be searched consents;
v. Partial searches done pursuant to the "stop and frisk" doctrine; and
vi. Certain inspections and regulatory searches (e.g., immigration searches at U.S. borders, sobriety checkpoints on highways, etc.)
Note: The fact that in a particular situation no search warrant is required does not necessarily mean that probable cause is not required. In some but not all of the above listed situations (e.g., exigent circumstances), the police must have probable cause to believe that a search will furnish evidence of crime, even though they are not required to get a warrant. In others of the above situations, something less than probable cause, and perhaps no real suspicion at all, will be needed. (Example: Less than probable cause, but some suspicion, is required for "stop and frisk," whereas no suspicion is required for a consent search).
II. WARRANTLESS ARRESTS
A. Not generally required: An arrest warrant is not generally required by the Constitution. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. [U.S. v. Watson] [69]
B. Entry of dwelling: The only situation in which an arrest warrant is likely to be constitutionally required is where the police wish to enter private premises to arrest a suspect. In that instance, the requirement for a warrant will depend on whether exigent circumstances exist. [69]
1. No exigent circumstances: If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. [Payton v. New York] [69]
a. Result of invalid arrest: A warrantless arrest made in violation of Payton will not prevent D from being brought to trial (since he can always be re-arrested after a warrant has been issued). However, if the police make an in-house arrest that required a warrant because there were no exigent circumstances, then any evidence seized as a result of a search incident to the arrest will be excluded.
2. Exigent circumstances: If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain an arrest warrant, no warrant is necessary (at least if the crime is a serious one, such as a felony). [70]
a. Destruction of evidence: For instance, if the police reasonably believe that the suspect will destroy evidence if they delay their entry until they can get a warrant, the requisite exigent circumstances exist.
b. Hot pursuit: Similarly, if the police are pursuing a felony suspect, and he runs into his own or another's dwelling, a warrantless entry and arrest may be permitted under the "hot pursuit" doctrine.
C. Statutory requirements: In addition to the constitutional requirements for arrest warrants described above, many states impose some statutory requirements for such warrants. (Example: Many states allow an officer to make a warrantless misdemeanor arrest only if the misdemeanor was committed in the officer's presence.) [70]
D. Use of deadly force to make arrest: The Fourth Amendment also places limits on how an arrest may be made. The main rule is that the police may not use deadly force to make an arrest, if the suspect poses no immediate threat to the officer and no threat to others. [Tennessee v. Garner] [71]
III. SEARCH INCIDENT TO ARREST
A. Search-incident-to-arrest generally allowed: In general, when the police are making a lawful arrest, they may search the area within the arrestee's control. This is known as a "search incident to arrest." Search-incident-to-arrest is the most important exception to the general rule that a search warrant is required before a search takes place. [72]
Example: Officer watches D run out of a coin shop at night, while the shop's alarm is ringing. Assuming that these facts give Officer probable cause to arrest D (which they almost certainly do), Officer may conduct a fairly full search of D's person after the arrest. For instance, Officer can require D to empty his pockets to show that there are no weapons, contraband or stolen property from the coin shop on his person. If on these facts Officer had arrested D while D was driving a car, Officer would also be permitted, under the search-incident-to-arrest doctrine, to search the passenger compartment of the car for weapons, contraband, etc.
1. Limited area around defendant: Only the area that is at least theoretically within D's immediate control may be searched incident to arrest. (The basic idea is that only the area that D might get to in order to destroy evidence or gain possession of a weapon may be searched.)
Example: Officers come to arrest D at his house for a recent robbery. They have an arrest warrant but no search warrant. After arresting D, the police conduct a full scale search of D's three-bedroom house. They discover some of the stolen property in one of the bedrooms, not the room in which they arrested D. Held, the property may not be admitted against D because it was found pursuant to a search that was unnecessarily widespread. Only the area within D's immediate control could be searched incident to the arrest. [Chimel v. California] [73 - 74]
B. Protective sweep: The Supreme Court also upholds "protective sweeps" under the search-incident-to-arrest doctrine. That is, where the arrest takes place in the suspect's home, the officers may conduct a protective sweep of all or part of the premises, if they have a "reasonable belief" based on "specific and articulable facts" that another person who might be dangerous to the officer may be present in the areas to be swept. [Maryland v. Buie] [76]
1. Adjoining spaces: But "specific and articulable facts" are not needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there.
C. Automobile search-incident-to-arrest: Where the police have made a lawful "custodial arrest" of the occupant of an automobile, they may, incident to that arrest, search the car's entire passenger compartment, and the contents of any containers found in that compartment. [New York v. Belton] [74 - 76]
1. Container found in compartment: The right to search the contents of any container found in the compartment means that the police may search closed or open glove compartments, as well as any luggage, boxes, bags, etc. found in the car. (Example: In Belton, supra, the police were permitted to search through D's zipped-up pocket of his jacket found in the car.)
2. Suspect away from car: Even if, at the time of the search, the suspect has been placed some distance away from the automobile (e.g., in the squad car), the police may search the passenger compartment -- this is true even though there is no practical danger that D will gain a weapon or destroy evidence from within the passenger compartment. [75]
3. Trunk not included: The rule permitting search of the passenger compartment incident to arrest does not cover searches of the trunk of the car. [76]
Note: When you are given facts involving the search of an automobile, consider, in addition to the search-incident-to-arrest exception to the search warrant requirement, the general automobile exception, by which once the police stop a car, arrest its owner and impound the car, they may then search the entire car, including the trunk. This general automobile exception is discussed below.
D. Contemporaneity of search: For the search to be incident to arrest, it need not be exactly contemporaneous with the arrest -- a search that takes place some time before, or sometime after, the arrest, will still be held "incident" to that arrest as long as it is closely connected to it logically speaking. [77 - 79]
1. Search prior to arrest: Thus the police may make a search before they arrest D, as long as they already have probable cause to make the arrest and are doing the search in order to protect themselves. Generally, the arrest must follow quite quickly on the heels of the protective search. [Rawlings v. Kentucky] [78]
2. Search long after arrest: Similarly, the search-incident-to-arrest exception is applicable even to searches which do not occur until sometime after the arrest, at least where the search is made of objects in the suspect's possession at the time of arrest. [78]
a. Search of person: Most commonly, the police may arrest D, take control of the objects in D's possession at the time of the arrest, and examine those objects at a later time.
b. Inventory searches: In fact, there now seems to be an "inventory search" exception to the search warrant requirement, which applies even if the search is not, strictly speaking, incident to arrest. That is, the police may take possession of any objects found on D's person at the time of arrest, and examine those objects as a means of conducting an "inventory" of D's possessions. This is true even though a long time elapses between the arrest and the inventory search, even though the police did not have probable cause to search, and even if the police could have obtained a search warrant beforehand and didn't. (Example: D is arrested for breach of the peace, and is not searched at the time of his arrest. At the station, the shoulder bag which he is carrying is taken. The bag is then searched and found to contain drugs. Held, whether D could have been searched incident to his arrest or not, the search was lawful because it was done pursuant to a routine inventory procedure, motivated by the police's need to deter police theft and to prevent arrestees from making false claims of theft.) [Illinois v. Lafayette] [79]
E. Legality of arrest: The search-incident-to-arrest exception to the search warrant requirement applies only where the arrest is legal. Thus if the arrest turns out to have been made without probable cause, the search incident to it cannot be justified on the search-incident-to-arrest rationale, and the arrest must be suppressed unless some other exception to the warrant requirement (e.g., prevention of destruction of evidence) justifies it. [79]
1. Unconstitutionality of statute not bar to search: But a search incident to arrest will not be invalidated by the fact that the statute violated is later held to be unconstitutional. [Michigan v. DeFilippo] [80]
F. Applicable even to minor crimes: The search-incident-to-arrest exception seems to apply to arrests even for minor crimes. For instance, if D is arrested for a traffic violation, he may be searched incident to the arrest even though the crime is not an especially "serious" one. [U.S. v. Robinson] [80]
1. Must be custodial arrest: However, for the search-incident-to-arrest doctrine to apply, the arrest must be a "custodial" one. That is, the officer must be planning to take D to the station-house for booking. (Example: Suppose that Officer stops D, a driver, for driving with an expired registration sticker. Suppose further that this is a misdemeanor, and that under local police department procedures, a driver stopped for such an offense is virtually never arrested, but is instead given a summons to be answered at a later date. On these facts, D is not really being "arrested," and his body, or his car, may not be searched incident to arrest.) [81]
a. D may be required to step out of car: However, even in the case of such a non-custodial stop, D may be required to step out of the car. Once he has stepped out of the car, presumably he may be subjected to at least a cursory frisk under the stop-and-frisk doctrine, discussed below. [82]
IV. EXIGENT CIRCUMSTANCES
A. Exigent circumstances generally: Even where the search-incident-to-arrest exception to the search warrant requirement does not apply, there may be exigent circumstances which justify dispensing with the warrant requirement. The most common exigent circumstances are: (1) preventing the imminent destruction of evidence; (2) preventing harm to persons; and (3) searching in "hot pursuit" for a suspect. [84 - 88]
B. Destruction of evidence: The police may conduct a search without a warrant provided that they have probable cause, and provided that the search is necessary to prevent the probable imminent destruction of evidence. [84 - 85]
Example: The police ask D to come to the police station so they can question him about the strangulation of his wife, V. D does so. The police do not arrest D, but notice blood on his finger. They ask if they can take a sample of scrapings from D's fingernails. He refuses. D then puts his hands in his pocket, and seems to be rubbing them against his keys. The police forcibly take scrapings from his fingernails, which turn out to contain traces of skin and fabric from V.
Held, the "search" of D's fingernails was lawful. The facts gave the police reasonable cause to believe that the evidence would soon be destroyed, so they were justified in conducting a limited search of D's person, just enough to preserve the fingernail scrapings. [Cupp v. Murphy]
C. Danger to life: A warrantless search may be allowed where danger to life is likely if the police cannot act fast. [85]
Example: Suppose the police learn that D, whose address they know, is plotting to kill the President one hour later. The police may probably break into D's home and search his premises without first getting a warrant, because of the extreme time pressure and extreme danger to life.
D. Hot pursuit: If the police are pursuing a felony suspect, and have reason to believe that he has entered particular premises, they may enter those premises to search for him. While they are searching for him, they may also search for weapons which, since he is still at large, he might seize. This is called the "hot pursuit" exception to the search warrant requirement. [87]
1. Other items: The "hot pursuit" exception is often combined with the "plain view" exception (discussed in detail below). That is, while the police are engaged in a hot pursuit of a suspect and any weapons he might have, they may seize any other evidence of criminal behavior that they stumble upon in plain view.
E. Entry to arrest non-resident: One commonly-occurring situation does not automatically constitute "exigent circumstances": where the police are not in hot pursuit, and there are no specific exigent circumstances, the police may not enter one person's private dwelling to arrest another, even if they are acting pursuant to an arrest warrant. [87 - 88] [Steagald v. U.S.]
Note: But this rule does not apply where the suspect is to be arrested at his own premises. That is, a warrant for D's arrest, even without a search warrant, will be enough to allow the police to enter D's house to make the arrest; while there, they may make a search incident to an arrest, and also seize any evidence they find in plain view. It is only where the police have a warrant for A's arrest, and use it to enter B's residence, that the special Steagald rule summarized above applies to prevent a warrantless search of B's premises.
V. THE "PLAIN VIEW" DOCTRINE
A. The doctrine generally: The "plain view" doctrine is often applied to allow police who are on premises for lawful purposes to make a warrantless seizure of evidence that they come across. [88]
B. Requirements for doctrine: For the plain view doctrine to be applied so that a warrantless seizure of evidence is allowable, three requirements must be met:
1. Legally on premises: First, the officers must not have violated the Fourth Amendment in arriving at the place from which the items were plainly viewed. (Example: Officer trespasses on D's front lawn to look into D's front window, where Officer gets the plain view. The doctrine does not apply, because Officer has violated the Fourth Amendment by getting into the position from which he has the view.) [89]
2. Incriminating nature must be apparent: Second, the incriminating nature of the items seized must be "immediately apparent." To put it another way, the police must, at the time they first see the item in plain view, have probable cause to believe that the object is incriminating. (Example: Officer is legally in D's apartment. Officer notices an expensive stereo. He picks the stereo up, reads the serial number on the bottom, and learns by phone that a unit with that number has recently been stolen. Held, the plain view doctrine does not apply, because at the moment Officer picked up the stereo, he did not have probable cause for the search he performed by moving it. [Arizona v. Hicks]) [89]
3. Lawful right of access: Finally, the officer must have a lawful right of access to the object itself. (Example: Officer, standing on the public sidewalk, can see through the window of D's house and can view marijuana growing in D's living room. Officer may not make a warrantless entry into D's house to seize the marijuana, because she doesn't have lawful access to the inside of the house.) [90]
C. No requirement of inadvertence: Remember that the plain view doctrine applies even where the police discovery of a piece of evidence that they want to seize is not inadvertent. [90]
VI. AUTOMOBILE SEARCHES
A. Relation to general exceptions: We look now at some special exceptions to the warrant requirement in the context of automobile searches. Keep in mind, however, that the general exceptions discussed above will frequently apply in the case of cars:
1. Exigent circumstances: For instance, exigent circumstances will often cause the warrant requirement to be suspended where a car search is involved. (Example: Officer spots a car known to be owned by a fugitive drug dealer, and reasonably believed to be used by the dealer in his drug operations. Officer may stop the car and search it even without a warrant, because of the risk that the car will otherwise be driven away or hidden.) [90]
2. Incident to arrest: Similarly, recall that a car's passenger compartment may be searched incident to the arrest of the driver or passenger. [91]
B. Two special exceptions: There are two major automobile-specific exceptions that have developed to the warrant requirement: (1) when the driver is arrested, the car may be searched at the station-house even without a warrant; and (2) if the police reasonably believe that a car is carrying contraband, it may be subjected to a full warrantless search in the field.
1. Search at station-house after arrest: Where the police arrest the driver, take him and his car to the station, and search the car there, no search warrant is generally required. (Example: The police, hearing a description of the getaway car used in a robbery, stop a car meeting that description, driven by D. They arrest D, and take D and the car to the station-house. There, they search the car without a warrant, and find incriminating evidence. Held, the search was valid, despite the fact that once the car was at the station-house the police could easily have gotten a search warrant. [Chambers v. Maroney]) [91]
a. Police could have gotten a warrant beforehand: Apparently the police have a right to impound the car after arrest and search it without a warrant even where they had advance notice and could easily have gotten a search warrant before the entire episode. [Florida v. White] [92]
2. Field search for contraband: Where the police have probable cause to believe that a car is being used to transport contraband, and they stop it, they may conduct a warrantless search not only of the car but of closed containers in the car. They may do this on the scene, without even impounding the car (as they have to do in the above "search at the station-house after arrest" scenario). [U.S. v. Ross; Calif. v. Carney] [93 - 97]
a. Passenger's belongings: Once the police have probable cause to believe that the car contains contraband, they may search closed containers inside it that could hold that type of contraband, even if those containers belong to a passenger, and even if there is no probable cause to believe that the passenger has been involved in carrying the contraband or any other illegality. [Wyoming v. Houghton] [95]
Example: If the police have probable cause to believe that the driver of a car is carrying drugs, they may stop the car and then do a drug search on any purse found in the back seat. This is true even if all of the following are true: (1) the police know that the purse is owned by a passenger, X; (2) the police have no particular reason to suspect that the purse (as opposed to the car in general) contains drugs; and (3) the police have no reason to suspect X of any wrongdoing. [Wyoming v. Houghton] (But the police can't search X's person on these facts.)
b. Probable cause for container only: Conversely, even if the police's probable cause relates solely to a closed container inside the car, not to the car itself, the police may stop the car and seize and open the container, all without a warrant. [California v. Acevedo] [97 - 98]
C. Actions directed at passengers: If the driver's conduct leads the police to make a proper stop and/or arrest, this does not mean that the officer has the right to search the person of any passenger who happens to be in the car. No matter what the driver has done, the officer may search a passenger only if the officer has either: (1) probable cause to believe that the passenger possesses evidence of a crime, or (2) probable cause to arrest the passenger (in which case the search is justified as being incident to arrest). [100]
However, the officer does have several other rights regarding passengers [100]:
Finally, if the officer has the right to search the vehicle, he may as noted above also search any container in the car that might contain the thing being looked for, even if the officer knows that the container belongs to a passenger, and even if the officer has no probable cause to believe that the container contains that thing.
D. Lack of probable cause: Of the various automobile scenarios that present an exception to the requirement of a search warrant, sometimes probable cause to make the search is required and sometimes it is not:
1. Needed if searched on scene: Where the driver is stopped and the police want to search the car on the scene, they will normally need probable cause to conduct that search: belief that they will find either incriminating evidence or contraband. [93] (Remember that they may perform a search incident to the arrest of the driver, but this right extends only to the passenger compartment. If they want to search, say, the trunk, they will need probable cause to believe that it contains contraband or evidence of crime.)
2. Plain view: If the police find evidence in plain view in a vehicle as they are impounding it, they may seize the evidence even though they did not previously have probable cause to search or seize. [98]
3. Impoundment: If the car has been impounded by the police pursuant to standardized procedures, the police may usually conduct a search at the station-house even though they do not have probable cause. For instance, where a police department routinely tows cars for illegal parking, the police may unlock and search each such towed car in the impoundment lot. [South Dakota v. Opperman] [99]
a. Containers in car: Similarly, once the impounded vehicle is searched, even closed containers inside it may be subjected to a warrantless and probable-cause-less inventory search. [100]
b. Standardized procedures and good faith: But such warrantless inventory searches must satisfy two conditions: (1) the police must follow standardized procedures, so that the person searching does not have unbridled discretion to determine the scope of the search; and (2) the police must not have acted in bad faith or for the sole purpose of investigation. (Example: If the arrest or impoundment took place just to furnish an excuse for a warrantless search, the inventory-search exception will not apply). [Colorado v. Bertine]
E. Traffic stop followed by ticket: Don't make the mistake of thinking that every time the police validly stop a motorist, they may search that motorist's car. There are times when no warrantless search is allowed even though the stop was proper. In particular, if the officer properly stops a car to write a traffic ticket, and does not make an arrest, the officer is not allowed, merely by virtue of the stop, to search the car. This is true even if under local law the officer could have made a custodial arrest for the traffic violation. [Knowles v. Iowa] [101]
Example: Officer Jones observes Goodman's car change lanes without signaling. Jones stops Goodman and begins to write a summons (a ticket), the proper procedure under local department rules. Jones demands that Goodman step out of the car while the ticket is being written, and then solely on a "hunch" decides to search Goodman's car. Jones finds cocaine under the front passenger seat. While the stop was proper, there's no applicable exception to the warrant requirement, so the search is invalid.
VII. CONSENT SEARCHES GENERALLY
A. Consent generally: The police may make a warrantless search if they receive the consent of the individual whose premises, effects, or person are to be searched. [102 - 107]
B. D need not know he can refuse consent: A person's consent will be effective even if the person did not know she had a right to refuse to consent to the search. [Schneckloth v. Bustamonte] [102]
1. Must be voluntary: The consent, to be effective, must be "voluntary," rather than the product of duress or coercion. But the Court measures voluntariness by a "totality of the circumstances" test, and the fact that the consenter did or did not know she had a right to refuse consent is merely one factor in measuring voluntariness.
2. Consent given in custody: Even where the consent is given while the person is in custody, the fact that the person is not told that he may refuse consent appears not to render the consent involuntary. [U.S. v. Watson] In other words, nothing like the Miranda rule -- where the suspect must be warned that he has the right to remain silent -- applies to a custodial suspect's consent to search his person or premises. [104]
C. Claims of authority to search: Suppose the consent to search is procured after the officer states that she has, or will get, authority to search if the person does not give consent. Courts generally distinguish between false claims of present authority, and threats of future action -- a false claim of present authority is much more likely to negate the voluntariness of the consent than is a threat of future action.
1. False claim of present authority: Where an officer falsely asserts that he has a search warrant, and then procures "consent," the consent is invalid. [Bumper v. North Carolina] [104]
2. Consent induced by reference to invalid warrant: Similarly, if the police truthfully state that they have a search warrant, but the warrant is in fact invalid (e.g., because rendered with a lack of probable cause), the consent of the person whose premises are to be searched is invalid. [105]
3. Threat to obtain warrant: But where the police merely threaten to obtain a warrant if consent is not given (and the consent is given), the result depends on whether the police in fact have grounds to get a warrant. If they do, the consent is usually found valid; if they don't, the consent is likely to be nullified. (However, the Supreme Court has not yet decided this issue explicitly). [105]
D. Misrepresentation of identity: Where the police misrepresent their identity by acting undercover, this deception does not vitiate any "consent." (Example: Officer, wearing plain clothes, comes to D's house pretending to be the meter reader for the local electric company. D, believing Officer's cover story, lets Officer into D's basement. While purporting to read the meter, Officer spots incriminating evidence in the basement in plain view. D will almost certainly be found to have consented to Officer's entry, notwithstanding the deception.) [106]
E. Physical scope of search: Where D's consent is reasonably interpreted to apply only to a particular physical area, a search that extends beyond that area will not be covered by the consent, and will be invalid unless it falls within some other exception to the warrant requirement. (Example: Officer asks D for permission to search D's living room for certain evidence. D responds, "O.K." Officer then goes into the kitchen and basement, and finds incriminating evidence. Since Officer went beyond the scope of the consented-to search, the evidence will be suppressed if no other exception to the search warrant requirement applies.) [106]
1. Plain view exception: But always keep in mind the "plain view" exception to the warrant requirement -- if while the searching officer is standing within part of the consented-to area, she spots evidence in another part of the premises, she can seize that evidence under the plain view doctrine.
VIII. CONSENT BY THIRD PERSONS
A. The problem generally: Be careful of consent issues raised when the police seek the consent of one person for the search of the property of another, or for the search of an area as to which another has an expectation of privacy -- the mere fact that the first person has voluntarily consented does not mean that the police may conduct the search and introduce evidence against the second person. In general, A may not consent to a search that would invade B's expectation of privacy -- only if special circumstances exist (e.g., both A and B have authority over the premises) will A's consent be in effect binding on B.
B. Joint authority: If the third person and D have joint authority over the premises, then the third person's consent to a search will be binding on D. (Example: D and X are roommates, and agree that each may use the living room of their apartment at any time. The police seek to make a warrantless search of the living room for evidence to be used in a narcotics investigation of D. While D is not present, they ask X, "May we search your living room?" X agrees. Any evidence the police find may be used against D, because X had joint authority over the living room, so his consent is effective as against D.) [108]
1. Limited area: But this "joint authority" principle only applies where the third party has authority over the particular area to be searched. (Example: On the facts of the above example, if the police wanted to search D's bedroom, which he did not share with X, X's consent would be invalid to such a search.) [108]
2. Reasonable mistake as to joint authority: A search will be valid if consent to it is given by a person who the police reasonably but mistakenly believe has joint authority over the premises. [Illinois v. Rodriguez] [108 - 109]
3. Person without authority: Contrast the result in the "joint authority" cases with the situation where the person doing the consenting does not have joint authority over the premises, and the situation does not fall into any of the other exceptions to the general rule that one person may not consent to the invasion of another's privacy. Where the consenting is done by a person who happens to be on the premises, but has no joint claim to them, the consent will be invalid.
Example 1: X is staying at D's house as a brief overnight guest. While D is away, X consents to a police search of the house, while explaining his guest-only status to the police. The search will almost certainly not be valid as against D, because X had no joint authority over the premises, and the police were not making any reasonable mistake that X did have such authority.
Example 2: D rents a bedroom in L's two-family house. The lease provides that L will not enter that bedroom without D's consent. While D is away, L consents to a police search of the bedroom. Since L had no right of access to the bedroom, his consent will not be binding on D, despite L's own status as owner of the premises.
C. Other theories: Even where the person doing the consenting does not have joint authority over the premises, some other theory may apply to justify a search that would otherwise violate D's rights:
1. Agency: First, it may be the case, as a factual matter, that D has authorized a third person to consent, even though the third person does not have direct ownership or control. (Example: D gives X, his trusted valet, complete run of the premises, and the authority to decide who will be admitted. If X consents to a police search, this will be binding on D under the doctrine of agency.) [109]
2. Property of consenter: If the person doing the consenting is the owner of the particular item to be searched or seized, this will be binding even if the search or seizure violates D's property interests. (Example: X owns a rifle, and consents to have the police seize it and test it. The rifle turns out, as the police suspect, to have been used by D, X's grandson, in a crime. This evidence can be used against D, because X as the owner of the item seized had the right to consent to the seizure.) [109]
3. Assumption of risk: Finally, the relationship between the third party and D may be such that D will be found to have "assumed the risk" that the third party might see or scrutinize D's property, in which case the third party may also consent to a search. (Example: D shares a duffle bag with X, his cousin. X consents to a police search of the bag. Held, this consent was binding on D, because D assumed the risk that X or others would look in the bag, and thus D had no expectation of privacy in the bag's contents. [Frazier v. Cupp]) [109]
D. Relatives: Consent issues often arise where one person consents to a search that implicates the privacy interests of the consenter's relative.
1. Husbands, wives and lovers: Where one spouse consents to the search of the property of the other, the search has almost always been upheld. [109]
a. Personal effects: One of the rare exceptions is that if one spouse permits the search of the other's personal effects stored in a separate drawer or closet used only by the other, the consent may be invalid.
2. Parent/child: Most courts have held that when a child is living at home with his parents, the parents may consent to a search of the child's room. [110]
a. Consent by child: The child, on the other hand, may not normally consent to a full scale search of the parents' house. (But if the child merely lets the police into the front area of the house and the child is generally allowed to admit strangers to that front area, the limited consent will probably be valid and anything the police can see from there will fall under the plain view doctrine.)
E. Other situations: Here are some other situations that frequently arise regarding third-party consent:
1. Schools: Most courts do not allow a college administrator to consent to a police search of a college student's dormitory room. Similarly, a high school official probably may not consent to a search of a student's locker. [111]
2. Landlords: Generally, a landlord may not consent to a search of his tenants' rooms, even though the landlord has the right to enter them for cleaning. But the landlord may consent to a search of the areas of "common usage," such as hallways and common dining areas. [111]
3. Employer: An employer probably may consent to a search of his employee's work area if the search is for items related to the job. But probably the employer cannot consent to a search of areas where the employee is, by the terms of the job, permitted to store personal effects (e.g., a locker given to the employee to store his street clothes at a factory). [112]
F. Ignorance of consenter: It is irrelevant that the consenter does not know the purpose of the search, or mistakenly believes that the person for whom she is consenting is innocent and has nothing to hide. [113]
IX. STOP-AND-FRISK AND OTHER BRIEF DETENTION
A. Problem generally: Sometimes the police, when they encounter a suspect, do not want to make a full arrest, but merely want to briefly detain the person. This happens most typically when the police are not investigating any particular crime, and are simply performing routine patrolling functions. The two questions which the "stop-and-frisk" doctrine deals with are: (1) When may the police briefly detain a person even though they do not have probable cause to arrest him or to search him? and (2) To what extent may the police conduct a protective, limited search for weapons on the suspect's person? [113 - 138]
B. General rule: In general, the stop-and-frisk doctrine lets the police do both of the above things in appropriate circumstances:
1. Right to stop: Where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity is afoot, he may briefly detain the suspect in order to make inquiries. Probable cause is not required -- reasonable suspicion, based on objective facts, that the individual is involved in criminal activity, will suffice. (The stop is a seizure under the Fourth Amendment, but it does not require probable cause, merely reasonable suspicion.)
2. Protective frisk: Once the officer conducts a stop as described above, then assuming nothing in the initial encounter dispels his reasonable fear for his or others' safety, the officer may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons. This limited "frisk" or "pat-down" is a Fourth Amendment search, but is deemed "reasonable." Consequently, any weapons seized may be introduced against the suspect. [Terry v. Ohio; Brown v. Texas] [114 - 115]
C. Stop of vehicle: The "stop and frisk" doctrine also may apply to allow an officer to order the stop of a vehicle. (Example: Officer, while in his patrol car, is approached by an informant he knows, who says that D, in a parked car nearby, possesses a gun and narcotics. Officer detains the car and driver, waits for D to roll down his window, then puts his head in, discovers a weapon in D's waistband, and removes it. Held, the informant's tip had sufficient indicia of reliability to allow Officer to forcibly stop D's car; given that the stop was reasonable, the pat-down of D's waistband and removal of the gun were justified to protect Officer. [Adams v. Williams]) [116 - 117]
1. Suspect and passengers required to leave car: Once the officer conducts a justified "stop" of a vehicle, the officer may also require the stopped motorist and even the passengers in the vehicle to leave the car, as a legitimate safety measure. [Pennsylvania v. Mimms; Maryland v. Wilson] [117]
D. Degree of probability required: Something less than probable cause to arrest or search is required in order for the officer to make a "stop."
1. Vague suspicion not enough: Vague suspicion is not enough. The officer may "stop" the suspect only if he has a "reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." (Example: D is stopped because: (1) he is walking in an area having a high incidence of drug traffic; (2) he "looks suspicious" to Officer; and (3) he has not been seen in that area previously by Officer. Held, these facts don't meet the "reasonable suspicion based on objective facts" test. Therefore, the stop was an unreasonable seizure in violation of the Fourth Amendment. [Brown v. Texas]) [117]
2. "Modest suspicion" enough: But a fairly modest amount of suspicion will be enough for a brief stop. (Example: If a person engages in a number of acts which, viewed together, make it plausible to believe that he may be a drug courier, this may be enough for a stop even though each act taken alone is consistent with innocence.) [118]
3. Flight as a cause for suspicion: The fact that an individual has attempted to flee when seen by the police will normally raise the police's suspicion, and may even without more justify the police in making a Terry-style stop. [120]
Example: D flees when he sees police officers patrolling the high-crime area where he is walking. They therefore stop him and pat him down. Held, the officers were justified in stopping D, because the combination of his fleeing from the police and his presence in a high-crime area created a reasonable suspicion that D was engaged in some sort of wrongdoing. [Illinois v. Wardlow]
4. Informant's tip: A Terry-like "stop" may be justified not only based on the officer's own observations, but also based on an informant's tip. Again, all that is required is "reasonable suspicion," and in the case of an informant's tip this is to be determined by the "totality of the circumstances." [120 - 121]
a. Prediction of future events: A key factor is whether the informant has predicted future events that someone without inside information would have been unlikely to know. [109]
b. Knowledge of hidden criminality: Also, where the informant is anonymous, the police must have reason to believe that the informant's knowledge about the suspect's criminal conduct is reliable. It's not enough that the informant merely knows something non-criminal about the suspect that anyone could know (e.g., the suspect's physical appearance and present location). [121]
Example: The police get an anonymous phone tip that a black male wearing a plaid shirt is standing on a particular street corner and carrying a concealed illegal weapon. The police stop D (who meets that description), pat him down, and find an illegal weapon on him. Held, the police didn't have enough suspicion from the tip to make the stop. That's because the anonymous informant didn't give the police any reason to believe that his information about D's criminal conduct (hidden weapon) was reliable -- the mere fact that the informant knew something non-criminal and publicly-visible about D (what D was wearing and where he was standing) was not an indicator of the informant's reliability as to the criminal conduct. [Florida v. J.L.]
E. What constitutes a "stop": Not every brief encounter between a police officer and a person on the street or in a car constitutes a "stop" within the meaning of the Fourth Amendment (i.e., a detention of such severity that it rises to the level of a Fourth Amendment seizure and must therefore be "reasonable"). [122 - 126]
1. The "reasonable person" test: Here is the test for determining whether an encounter constitutes a Fourth Amendment "seizure": "A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." [U.S. v. Mendenhall]) [122]
a. Illustrations showing lack of freedom to leave: Here are examples (cited by the Court in Mendenhall, supra) of circumstances that might indicate to a reasonable person that he is not free to leave: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person; or (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Example: Suppose Officer, upon passing D in the street, says, "Could I ask you a question, sir?" At this point, probably no Fourth Amendment seizure has occurred, because a reasonable person in D's situation would probably think he was free to refuse to answer the question and continue walking. If so, Officer would not need any "reasonable suspicion, based on objective facts¼," and even in the absence of such suspicion any incriminating statement made by D would be admissible against him. (That is, D could not have his statement excluded as the fruit of the poisonous tree, because no illegal Fourth Amendment seizure would have occurred.)
2. Chase by police: If the police are chasing a suspect, the chase itself does not constitute a "seizure" -- until the suspect submits to the chase (by stopping), there is no seizure. [124]
F. "Stop" vs. arrest: At some point, the stop is sufficiently long and intrusive that it turns into a full-scale arrest. Remember the significance of the distinction between stop and arrest: for a stop, only "reasonable suspicion" is required, whereas for an arrest, probable cause is required. Here are the factors the Court looks to in determining whether a detention has remained a "stop":
1. No longer than reasonably necessary: The detention must not be longer than the circumstances justifying it require. Typically, this will not be more than a few minutes, but in unique situations (e.g., waiting for a suspected "alimentary canal" drug smuggler to void), longer may be allowed. [126]
2. No more intrusive than reasonably necessary: The stop must also be no more intrusive than needed to verify or dispel the officer's suspicions. [126]
3. Transporting D to somewhere else: Finally, if the police transport the suspect to another place, especially the station-house, this is likely to turn the stop into an arrest. Thus even if no formal arrest is made, the police cannot transport a suspect to the police station without probable cause. [Dunaway v. New York]
G. Scope of permissible frisk: When the police perform a frisk after making a stop, the frisk must be limited to a search for weapons, or other sources of danger. That is, the purpose of the frisk may not be to search for contraband or incriminating evidence. (Example: Officer temporarily stops D, a patron in a bar, and frisks him. Officer feels, through D's clothing, what appears to be a cigarette pack with some objects in it. Officer then removes the pack, and discovers heroin packets inside it. Held, the search went beyond the permissible scope of a frisk pursuant to a stop-and-frisk: Officer had no reasonable belief that D was armed or dangerous, so Officer was not entitled to even start the frisk. [Ybarra v. Illinois]) [130 - 131]
1. Armed or dangerous: The frisk may take place only if the officer has a reasonable belief that D may be armed or dangerous. Thus if D's hands are empty, he gives no indication of possessing a weapon, he makes no gestures indicating an intent to commit assault, and he acts generally in a non-threatening manner, the officer probably may not conduct even the basic outside-the-clothes pat-down. See Ybarra v. Illinois, supra] [131]
H. Search of automobile: When the police make a "stop" of a person in a car, the police may then search for weapons in the car's passenger compartment, even though the suspect is no longer inside the car. [Michigan v. Long] Just as the police may frisk the body of a suspect who has merely been stopped rather than arrested if the officers reasonably believe the suspect may be armed, so the police may search the passenger compartment if: (1) the officers reasonably believe that the driver is dangerous and may gain control of weapons that may be in the car; and (2) they look only in those parts of the passenger compartment where weapons might be placed or hidden. [132 - 133]
1. Limited application: In the typical situation of a stop for a traffic violation, there probably will be no right to search the passenger compartment for weapons, because the police would not have a "reasonable belief based on specific and articulable facts" that weapons may be found in the car. But if the police find weapons on the suspect's person, or they see a weapon in plain view in the car, then presumably they become entitled to conduct a weapons-search throughout the passenger compartment. [133]
X. INSPECTIONS AND WEAPONS SEARCHES
A. Summary: So far, we have looked at the Fourth Amendment only in the context of the investigation of specific crimes. Here, as we have seen, probable cause to search is usually necessary, and a search warrant is necessary unless there is a specific exception to the warrant requirement. Now, we turn to a different type of law enforcement activity: inspections and regulatory searches, which are not focused on investigating a particular crime or apprehending a known criminal. In this context: (1) probable cause to conduct the inspection or regulatory search usually is not required; and (2) a search warrant may or may not be required. [139 - 149]
B. Inspections: For most types inspections -- health, safety, fire inspections, for instance -- a search warrant is required. [Camara v. Municipal Court] [139 - 140]
1. Probable cause not required: However, in order to obtain the warrant, the inspector does not have to demonstrate probable cause to believe that a violation will be discovered in the premises to be searched. Instead, the inspector merely needs to show that the inspection is part of a general area inspection (i.e., the inspector has not singled out a particular premises).
2. Special licensed businesses: Where a business is subject to special stringent licensing rules, a warrantless inspection search may be allowed. (Example: Since weapons dealers must be licensed by the federal government, they may be searched without a warrant.)
C. Immigration searches: Certain types of immigration-related searches may be carried out without a warrant and without probable cause. [140 - 142]
1. Border searches: At the border, immigration and customs officials may search baggage and vehicles (and to a limited extent, the traveler's own person) without probable cause to believe that there is an immigration violation or smuggling, and without a warrant. [Almeida-Sanchez v. U.S.] [141]
2. Interior patrols and check-points: Where a search does not occur at the border or its "functional equivalent," however, a stronger showing of reasonable suspicion is required. A vehicle inside the border and not known to have recently crossed the border may be stopped and searched only if there is probable cause to believe that aliens or smuggled objects are present. [Almeida-Sanchez, supra.] [141 - 142] But there are two exceptions to this tougher rule:
a. Roving patrol: Where immigration officials, as part of a "roving patrol," stop a car in the interior not to make a search, but to briefly question the occupants, probable cause is not required. The officials must, however, point to specific factors giving rise to some significant suspicion that a violation has occurred. (Example: The Mexican appearance of the car's inhabitants is not by itself sufficient to allow even a brief stop for questioning, even in, say, southern Texas.)
b. Fixed check-point: Where a fixed check-point is set up in the interior, all cars may be stopped for brief immigration-related questioning. Then, if the questioning gives rise to additional suspicion, motorists may be referred to a second place where they can be questioned and if necessary searched. [U.S. v. Martinez-Fuerte]
D. Routine traffic stops: Apart from the border-search and immigration issues, the police may wish to stop cars to make sure that the driver is licensed and the car is registered.
1. Random stops: If the police randomly stop cars to do this checking, they may not make a particular stop unless they have a suspicion of wrongdoing based upon an "objective standard." That is, a practice of making totally random stops, where a stop is made even though the officer has no objective grounds for suspicion, violates the Fourth Amendment. [Delaware v. Prouse] [143]
2. Check-point: However, the police may set up a fixed check-point on the highway to test for a certain type of violation, e.g., drunkenness. [Mich. Dept. of State Police v. Sitz] [143]
E. Other contexts: Here are some other contexts in which government's right to make inspections and regulatory searches has arisen:
1. Supervision of parolees and probationers: Parolees and probationers may be subjected to warrantless searches by officials responsible for them, even if probable cause is lacking. [Griffin v. Wisconsin] Instead of probable cause and a warrant, all that is required for the search of a probationer or a parolee is that it be conducted pursuant to a valid regulation. [144]
a. Pre-trial detainee: Similarly, pre-trial detainees may be subjected to cell searches and in some cases searches of body cavities, without probable cause or a warrant. Such a detainee, even though he has not been convicted of any crime, has a "diminished" reasonable expectation of privacy. [Bell v. Wolfish] [144]
2. Searches in schools: The rules regarding when searches of students and their possessions may take place without a warrant and without probable cause, are still uncertain. We do know that the schools have substantial power to take these actions if they don't act in connection with the police.
a. Warrantless search for violation of school rules: Thus a school official acting alone (not acting in concert with law enforcement authorities) may search the person and premises of a student without a warrant. All that is required is that the official have "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." [New Jersey v. T.L.O.] [145]
Note: We simply do not know whether the same "suspicion of violating school rules" standard applies where the search of the student is actually carried out by law enforcement officials as opposed to school officials. Probably the Supreme Court would say that the Fourth Amendment applies once the police get involved.
b. Drug tests for student-athletes: Similarly, a school district may require that all student athletes submit to a drug test (urinalysis), at least where the results are not shared with the police, and the testing is conducted in a relatively unintrusive manner. [Vernonia School Dist. v. Acton] [146]
3. Office of government employee: Neither a warrant nor probable cause is required prior to the search of the office of a government employee by the employer, so long as the search is somehow work-related. [O'Connor v. Ortega] All that is required is that the search be "reasonable¼under all the circumstances." (Example: Officials of a public hospital suspect that P, a doctor who works there, may have improperly caused the hospital to obtain a computer for him. The officials search and "inventory" the contents of P's office, without getting a warrant and without showing probable cause. Held, probable cause and a search warrant are not required before an employer searches an employee's work space for work-related reasons. The intrusion must merely be reasonable under all the circumstances. Case remanded to decide whether this standard is satisfied on these facts. [O'Connor, supra.]) [148 - 149]
Chapter 4
ELECTRONIC SURVEILLANCE
AND SECRET AGENTS
I. ELECTRONIC SURVEILLANCE
A. Wiretapping and bugging generally: There are two main techniques of "electronic surveillance" often used by law enforcement officials, on which the Fourth Amendment places strict limits. These two techniques are "wiretapping" and "bugging."
1. Wiretap: In a wiretap the listener (in our context, the government) places electronic equipment on the telephone wires, and uses this equipment to listen to conversations that take place on the telephone.
2. Bugging: In "bugging" (also known as "electronic eavesdropping"), the listener puts a microphone in or near the place where a conversation is to occur, and uses this equipment to listen directly to the conversation. (An example of bugging would be the placement of a microphone inside a lamp inside the suspect's bedroom, where the microphone is used to pick up and transmit conversations taking place in that room.)
B. Requires warrant and probable cause: Both wiretapping and bugging normally constitute Fourth Amendment searches, and must therefore satisfy the requirements of probable cause and a warrant. That is, so long as the conversation that is intercepted is one as to which both participants had a reasonable expectation of privacy, the fact that the microphone or wiretapping equipment is located outside the suspect's premises makes no difference. The famous case of Katz v. U.S., in which the Supreme Court first articulated its "justifiable expectation of privacy" test for determining when the Fourth Amendment applies, was in fact a bugging case. [169]
1. Participant monitoring: But where the wire-tapping or eavesdropping occurs with the consent of one of the parties to the conversation, then there is no Fourth Amendment problem. (Example: The FBI learns that D and X will be having a conversation in which D is likely to implicate himself in a crime. They ask X for permission to place a wiretap on X's phone; X agrees. The conversation takes place, and the agents record it. This wiretapping is not a violation of the Fourth Amendment, because it occurred with the permission of one of the participants. Therefore, the recording can be introduced against D at his criminal trial.) [170]
C. Federal statutory regulation: The use of wiretapping and electronic eavesdropping by government is now tightly regulated by a federal statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968. [170 - 173]
1. Regulates state and federal law enforcement: No federal or state law enforcement official may conduct electronic surveillance except by following the strict procedural requirements of Title III. (Also, a state official may not do so unless her state has passed enabling legislation, which fewer than half the states have done.)
2. Requirements: Under Title III, electronic surveillance may not take place except under a special judicial order authorizing the surveillance in advance. The judge may authorize an intercept only if he finds that (inter alia): (1) there is probable cause to believe that a specific individual has committed one of certain crimes listed in the statute; (2) there is probable cause to believe that the intercept will furnish evidence about the crime; (3) normal investigative procedures have been tried and have failed, or reasonably appear likely to fail or be dangerous; and (4) there is probable cause to believe that the facilities where the intercept is to be made are being used in conjunction with the offense or are linked to the suspected individual.
3. Covert entry allowed: Once officials get a Title III judicial order authorizing bugging, they may make a covert entry even into private premises to install the bug. [Dalia v. U.S.] [171]
4. Consenting party exception: Title III does not apply where an interception takes place with the consent of one of the parties to a communication; in this situation, no warrant is needed (because, as noted above, the Fourth Amendment itself is never triggered). [172 - 173]
II. SECRET AGENTS
A. Secret agents generally: Fourth Amendment questions can also arise where the police make use of "secret agents." A secret agent is, in essence, a person who has direct contact with a suspect, under circumstances in which the suspect does not realize that he is dealing with someone who is helping the government. A secret agent can either be "bugged" (i.e., equipped with an electronic device that records and/or transmits conversations) or "unbugged."
1. Summary of law: In brief, neither "bugged" nor "unbugged" secret agents pose Fourth Amendment problems -- so long as the target is aware that a person (the agent) is present, the fact that the target is unaware that the agent is indeed a secret agent or informer (as opposed to being the suspect's friend, for instance) does not turn the mission into a "search" or "seizure" under the Fourth Amendment.
B. Bugged agents: Thus the Supreme Court has held several times that "bugged agents" -- secret agents equipped with electronic surveillance equipment -- are not eavesdropping and thus cannot possibly violate the Fourth Amendment. [On Lee v. U.S.; U.S. v. White] (Example: Informer is wired to transmit to narcotics agents conversations that he hears or is a part of. Informer then has conversations with D in a restaurant, in D's home, and in Informer's car. Tapes of these transmitted conversations are introduced at D's criminal trial. Held, no Fourth Amendment right has been triggered. When a person misplaces his trust and makes incriminating statements to an informer, he does not have any justifiable expectation of privacy which has been violated -- there is no Fourth Amendment protection given to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." This is true whether the informer is bugged or not. [U.S. v. White, supra.]) [173 - 174]
C. Unbugged agents: Since the use of bugged agents does not implicate the Fourth Amendment, it is not surprising that the use of unbugged agents does not violate that amendment either.
Example: A Teamster-turned-informant visits Jimmy Hoffa's hotel room and overhears conversations concerning Hoffa's plan to bribe jurors. The informant testifies about these conversations in Hoffa's later jury-tampering trial.
Held, Hoffa's Fourth Amendment rights were not even implicated, let alone violated, by introduction of these statements. Hoffa's "misplaced trust" was his own fault, and did not vitiate his consent to the informant's entry into the hotel suite. [Hoffa v. U.S.] [174]
Note on the right to counsel: But the use of a bugged or unbugged informer against a suspect who has already been indicted may violate the suspect's Sixth Amendment right to counsel, discussed below. Once a suspect has been indicted and has counsel, it is a violation of that right to counsel for the secret agent to "deliberately elicit" incriminating statements from the suspect in the absence of counsel, and to pass these on to the prosecution for use in the case involving the indictment. For instance, in Hoffa, supra, if Hoffa had already been indicted by the time the informant came to Hoffa's hotel room -- which he had not -- the statements could not have been used against Hoffa in the trial on that indictment.
D. Entrapment: Very occasionally, a secret agent may be so active that his role constitutes "entrapment" of the defendant. In most jurisdictions, entrapment occurs if a law enforcement official, or someone cooperating with him, has induced D to commit a crime which D was not otherwise predisposed to commit. (Example: X, a secret government agent, repeatedly says to D over many months, "Why don't we rob the local 7-11?" D resists each time. Finally, D agrees to drive a car and wait while X does the robbery. As they arrive at the 7-11, police arrest D and charge him with attempted robbery. D may be able to establish that he was not predisposed to commit robbery and did so only because X induced him; if so, D may succeed with an entrapment defense.) [176]
1. Not a constitutional defense: The Supreme Court has never recognized any constitutional basis for the entrapment defense. Thus it is up to each state legislature (and, in the federal system, up to the Supreme Court in the exercise of its supervisory powers over the administration of justice in the federal court system) to decide under what facts the entrapment defense should be allowed. So in an exam question that is focusing on constitutional criminal procedure, you can probably ignore the possibility that the secret agent's conduct amounted to entrapment. [177]
Chapter 5
CONFESSIONS AND
POLICE INTERROGATION
I. INTRODUCTION
A. Two requirements for confessions: In both state and federal courts, a confession may be introduced against the person who made it only if the confession satisfies each of the following two requirements:
1. Voluntary: The confession must have been voluntary, i.e., not the product of coercion by the police; and
2. Miranda warnings: The confession must have been obtained in conformity with the Miranda decision -- in brief, if the confession was given by the suspect while he was in custody and under interrogation by the authorities, the suspect must have been warned that he had the right to remain silent, that anything he said could be used against him, and that he had the right to have an attorney present.
II. VOLUNTARINESS
A. Voluntariness generally: Regardless of whether Miranda warnings are given to the suspect, his confession will only be admissible against him if it was given voluntarily. [182]
1. Must be police coercion: But the test for determining the "voluntariness" of a confession is one that is fairly easy to satisfy. Apparently the only thing that can now prevent a confession from being found to be "voluntary" is police coercion. Thus neither coercion by non-government personnel, nor serious mental illness on the suspect's part, is relevant to this question.
Example 1: Victim says to Suspect, "Because you shot me, I will take revenge on you by shooting your sister unless you turn yourself into the police and confess." Suspect goes to the police and confesses. It appears that this confession would be treated as "voluntary," and admitted against Suspect at his criminal trial, even though it was in a sense the product of coercion by Victim -- so long as there was no police coercion, nothing else matters in deciding the question of voluntariness.
Example 2: Suspect is in a psychotic schizophrenic state. He confesses to a crime because the "voice of God" tells him he should do so. Held, this confession is admissible against Suspect, because there was no police or other governmental wrongdoing. [Colorado v. Connelly]
2. Collateral use: If a confession is obtained by police coercion (and is thus "involuntary"), it must be excluded not only from the prosecution's case in chief, but also from use to impeach D's testimony. (This makes involuntary confessions quite different from confessions given in violation of Miranda, which may be admitted to impeach D's testimony on the stand.)
III. MIRANDA GENERALLY
A. Miranda: The main set of rules governing confessions in both state and federal courts derive from Miranda v. Arizona. In general, Miranda holds that when a suspect is questioned in custody by the police, his confession will be admissible against him only if he has received the "Miranda warnings." [186 - 191]
B. Three requirements for application: Before Miranda will be found to apply, three requirements must be satisfied:
1. Custody: First, Miranda warnings are necessary only where the suspect is taken into custody. (Thus if the police ask a question to someone they meet on the street, without formally detaining him, Miranda is not triggered.) [186]
2. Questioning: Second, the Miranda rule applies only where the confession comes as the result of questioning. (Thus statements that are truly "volunteered" by the suspect are not covered.)
3. Authorities: Finally, Miranda applies only where both the questioning and the custody are by the police or other law enforcement authorities. (Thus if a private citizen, acting independently of law-enforcement officials, detains a suspect and questions him, any resulting confession is not covered.)
C. Warnings required: There are four warnings which are required once Miranda applies at all. The suspect must be warned that [186]:
1. He has the right to remain silent;
2. Anything he says can be used against him in a court of law;
3. He has the right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be appointed for him prior to any questioning if he desires.
D. Inadmissibility: Any statement obtained in violation of the Miranda rules will be inadmissible as prosecution evidence, even if the statement is in a sense "voluntary." [188]
1. Impeachment use: But a confession given in violation of Miranda, although not admissible as part of the prosecution's case in chief, may generally be introduced for purposes of impeaching testimony which the defendant has given. This "impeachment exception" to Miranda is discussed further below.
E. Rights may be exercised at any time: The suspect may exercise his right to remain silent, or to have a lawyer present, at any time during the questioning. Thus even if the suspect at first indicates that he waives his right to silence and to a lawyer, if he changes his mind the interrogation must cease. [187]
F. Waiver: The suspect may waive his right to remain silent and to have a lawyer. However, this waiver is effective only if it is knowingly and intelligently made. The suspect's silence may not be taken as a waiver. [187]
1. Suspect already aware of rights: The police must give the Miranda warnings even if they have reason to believe that the suspect is already aware of his rights.
G. Right to counsel:
1. Right to appoint counsel applies only where questioning occurs: If the suspect says that he wants his own lawyer present, or that he cannot afford a lawyer and wants one appointed for him, the police do not have an absolute duty to provide the previously-retained lawyer or a new appointed one -- the rule is merely that the police must not question the suspect until they get him a lawyer. So the police can avoid the need for procuring counsel by simply not conducting the interrogation. [187]
2. Right to have lawyer present during questioning: The right to counsel imposed by Miranda is not merely the right to consult a lawyer prior to the questioning, but the right to have the lawyer present while the questioning occurs. [187]
H. Fifth Amendment basis for: The basis for Miranda is the Fifth Amendment's privilege against self-incrimination, not the Sixth Amendment's right to counsel. The basic idea is that when a suspect is questioned while in custody, this questioning is likely to induce confessions made in violation of the Fifth Amendment. [188]
1. Congress or state legislature can't override: Because Miranda was based on the Court's interpretation of the constitution, Congress and state legislatures can't impose different rules that make non-Mirandized confessions substantively admissible. [189 - 191]
Example: Shortly after the Miranda decision, Congress passes a statute saying that in federal prosecutions, any confession that was voluntary under all the circumstances must be admissible against the defendant, even if the Miranda warnings were not given. Held, this provision is unconstitutional, because Miranda is a "constitutional rule," and Congress can't change the scope of constitutional guarantees. [Dickerson v. U.S.]
IV. WHAT IS A "CUSTODIAL" INTERROGATION
A. "Custody" required: Miranda warnings must be given only when police questioning occurs while the suspect is in "custody." [191]
1. "Focus of investigation" irrelevant: In deciding whether the suspect is in "custody," the fact that the police investigation has (or has not) "focused" on that suspect is irrelevant. [191]
2. Objective "reasonable suspect" test: Whether a suspect is or is not in "custody" as of a particular moment is to be determined by an objective "reasonable suspect" test: the issue is whether a reasonable person in the suspect's position would believe that he was (or was not) in custody at that moment. [192 - 193]
a. Officer's unexpressed intent irrelevant: This "reasonable suspect" standard means that the unexpressed intent of the interrogating officer to hold (or not hold) the suspect is irrelevant.
Example: D, a motorist, is stopped by Officer and required to get out of his car. Officer asks D a question, to which D gives an incriminating response. At the moment Officer asked the question, Officer had decided to arrest D, but had not yet told D of this fact.
Held, D was not necessarily in custody from the moment he was required to get out of the car -- the issue is "how a reasonable person in the suspect's position would have understood his situation," and a reasonable person on these facts might have believed he was free to go. [Berkemer v. McCarty] [195]
3. Undercover agent: One consequence of the "reasonable suspect" rule is that if D talks to an undercover agent or to a government informant, and D does not know he is talking to a law enforcement officer, no "custodial interrogation" has taken place. This is true even if D is in jail. [Illinois v. Perkins] [192]
Note: However, the use of undercover agents, although it will never cause a Miranda violation, may lead to a violation of the suspect's Sixth Amendment right to counsel -- once a suspect has been indicted or otherwise charged, it violates his right to counsel for a secret agent to deliberately obtain incriminating statements from him in the absence of counsel.
B. Place of interrogation: The place in which the interrogation takes place will often have an important bearing on whether "custody" exists. The test is always whether a reasonable person in D's position would believe he was free to leave, and this will depend in part on the locale. [194 - 196]
1. Station-house: Thus interrogations that take place in a station-house are more likely to be found "custodial" than those in, say, the defendant's home. [194]
a. Arrest: If D has been told that he is "under arrest" and is escorted to the police station, that's virtually dispositive -- D is clearly in custody, because a person under arrest is not free to leave (at least until further steps, such as arraignment, have taken place).
b. Placed in patrol car: Similarly, if D has been placed in a patrol car under circumstances suggesting that D has been arrested, he is clearly in "custody."
c. Voluntary station-house questioning: A suspect who "voluntarily" comes to the police station in response to a police request is normally not in custody, and is therefore not entitled to Miranda warnings. [Oregon v. Mathiason]
i. Lack of formal arrest not dispositive: However, the mere fact that there has been no formal arrest will not by itself suffice to prevent a station-house questioning from being custodial. If the surrounding circumstances would indicate to a reasonable person in D's situation that he was not free to leave the station-house, then the questioning is "custodial" however voluntary D's initial decision to come to the station may have been. (Example: During the course of "voluntary" questioning, the police let D know that they now consider him the key suspect in the crime. This is likely to be enough to convince a reasonable person in D's position that the police are about to arrest him; if so, D is already in custody.)
2. Street encounters: The issue of whether D is in custody often arises where the encounter takes place on the street.
a. Scene-of-the-crime questioning: The police may engage in a general questioning of persons near the scene of a crime without giving Miranda warnings. [195]
i. Focus on suspect: But if the police seize one particular suspect fleeing the scene of the crime, the warnings presumably have to be given.
b. D acts suspiciously: The police may sometimes detain a person not as part of a general "scene of the crime" investigation for a specific known crime, but because the person is acting suspiciously. (Example: A brief "stop and frisk" detention.) Such encounters are usually not custodial, even where the suspect is frisked for the policeman's safety. [195]
3. Traffic stops: Stops of motorists for minor traffic violations will normally not be "custodial." Here, as in other contexts, the test is whether one in the motorist's position would believe that he was or was not free to leave. Usually a driver in this position would reasonably believe that he was free to leave after a ticket had been issued to him. [195]
a. Arrest: Of course, if the police notify the motorist that he is under arrest, he is immediately deemed to be in custody.
4. Interview at home: If the encounter takes place at D's home, while he has not been placed under arrest, D is probably not in custody. [196]
V. MINOR CRIMES
A. No "minor crimes" exception: There is no "minor crimes" exception to the Miranda requirement. That is, if an interrogation meets all of the standard requirements for Miranda warnings (especially the requirement that the suspect be "in custody"), these warnings must be given no matter how minor the crime, and regardless of the fact that no jail sentence may be imposed for it. [Berkemer v. McCarty, supra.] [197]
1. Traffic stops: This means that if the suspect is charged with a minor traffic violation, but is then taken into custody, he is entitled to Miranda warnings. [197]
VI. WHAT CONSTITUTES INTERROGATION
A. Volunteered statements: A "volunteered statement" is not covered by Miranda. That is, if a suspect, without being questioned, spontaneously makes an incriminating statement, that statement may be introduced against him, despite the absence of Miranda warnings. [197]
1. Voluntary custodial statements: This is true even if the statement comes from a suspect who is in custody. So long as the statement is not induced by police questioning, the fact that the suspect is in custody is not enough to trigger Miranda.
B. Indirect questioning: But "interrogation" for Miranda purposes includes more than just direct questioning by the police. Interrogation will be deemed to occur whenever a person in custody is subjected to either express questioning, or to words or actions on the part of the police that the police "should know are reasonably likely to elicit an incriminating response from the suspect." [Rhode Island v. Innis] [198]
1. No interrogation found: Application of this "should know are reasonably likely to elicit an incriminating response" test will often mean that even though the police make comments that lead directly to an incriminating result, no "interrogation" is found. (Example: D is arrested for a murder committed by use of a sawed-off shotgun, which has not been found. While D is being transported near the crime scene, Officer comments to his colleagues in front of D that there is a school for handicapped children nearby, and that "God forbid one of the children might find a weapon with shells and they might hurt themselves." D then directs the officers to the place where the gun can be found. Held, Officer's comment did not constitute interrogation of D, so D was not entitled to Miranda warnings. [Rhode Island v. Innis, supra.]) [198]
C. Police allow situation to develop: The requirement of "interrogation" means that even if the police allow a situation to develop that is likely to induce the suspect to volunteer an incriminating remark, no Miranda warnings will be given if the police do not directly interact with the suspect. For instance, where the police allow a meeting between D and his spouse in which D is likely to incriminate himself while under covert observation, probably no "interrogation" occurs. [Arizona v. Mauro] [199]
1. Police set up situation: But if the police intentionally set up a compromising situation for the purpose of inducing D to incriminate himself, interrogation is much more likely to be found.
D. Identification questions: Routine questions asked to a suspect for identification only probably do not require Miranda warnings. (Example: Routine questions asked during the booking of a suspect, such as questions about D's name, address, height, weight, etc., do not require Miranda warnings.) [200]
E. Questions by non-police: Where questions are asked by people other than the police, these will invoke Miranda only if asked by other law enforcement officials. [200 - 201]
1. Investigator or victims: Thus questions asked of a suspect by a private investigator, or by a victim of the crime, will not be covered by Miranda.
2. Government officials: But questions by probation officers, IRS agents conducting tax investigations, or a court-ordered psychiatrist evaluating D's sanity for purposes of penalties, are all likely to be found to trigger a requirement of Miranda warnings.
VII. THE "PUBLIC SAFETY" EXCEPTION TO MIRANDA
A. The public safety exception generally: Miranda warnings are unnecessary where the questioning is "reasonably prompted by a concern for the public safety." [New York v. Quarles] [202 - 204]
Example: Officer and three colleagues accost D, a suspected rapist, in a grocery store. When he sees the officers, D runs towards the back of the store, where he is caught and handcuffed. Officer, without giving D Miranda warnings, asks him whether he has a gun and where it is. D answers, "Over there." The gun is found, and D's statement -- plus the gun -- are introduced against him at his trial.
Held, even though D was in custody and was under interrogation at the time of his statement, he was not entitled to Miranda warnings because the police questioning was motivated by a need to protect the public safety. [Quarles, supra.]
1. Objective standard: The existence of a threat to the public safety is to be determined by an objective, not subjective, standard. That is, the questioning officer's subjective belief that there is or is not a significant threat to the public safety is irrelevant, and the test is whether a reasonable officer in that position would conclude that there was such a threat.
2. May still show compulsion: Despite the "public safety" exception to Miranda, the defendant is always allowed to show that his answers were actually coerced. If he can make this showing, he will still be entitled to have those answers excluded -- this exclusion will be based on lack of voluntariness, not on the police failure to give Miranda warnings.
VIII. WAIVER OF MIRANDA RIGHTS
A. Waiver generally: After being read the Miranda warnings, a suspect may waive his right to a lawyer and his right to remain silent. Or, the suspect may waive one of these rights without waiving the other. Waivers may be express or implied.
B. Express waiver: Express waivers raise few problems. Normally, an express waiver will take the form of a writing signed by the suspect, in which he states that he is waiving his right to a lawyer and his right to remain silent. As long as D is induced to sign the waiver without coercion or trickery, no legal problems should be presented. [208]
C. Implied waiver: Miranda rights may also be subjected to an "implied waiver." In an implied waiver, D does not expressly state that he is waiving his rights, but his words or conduct suggest that he has decided to relinquish those rights. Courts scrutinize an alleged implied waiver far more carefully than an express waiver.
1. Burden of proof: The prosecution bears the burden of demonstrating that the implied waiver was a "knowing" one, at least in the sense that D was aware of his Miranda rights and of his right to refuse to waive them. [208]
2. Silence: The accused's silence after being read his Miranda warnings will never by itself be sufficient to demonstrate a waiver. (Example: D, in custody, is read his Miranda warnings. He makes no response. Officer then starts to question D, and D responds, incriminating himself. It is very unlikely that D will be found to have waived his rights, because his only response was silence, followed by his answering of questions. Some more specific indication that D knew of his rights and had voluntarily decided to waive them will be required.) [210]
3. Refusal to sign waiver form: The suspect's refusal to sign a written waiver form does not automatically negate his waiver of his Miranda rights. [North Carolina v. Butler] [210]
4. Refusal to sign statement without lawyer: Similarly, if the suspect makes an oral statement, but refuses to sign a written transcript of the statement, this, too, will not automatically mean that D has failed to waive his rights. [Connecticut v. Barrett] [211]
5. Retained lawyer not consulted: Where a lawyer has been retained by the suspect's family, the suspect's waiver of his Miranda rights (and his consequent failure to consult with the lawyer) will be effective even where the police decline to tell him that the lawyer has been retained for him, and even where the police prevent the lawyer from seeing the suspect. [Moran v. Burbine] [212 - 215]
6. Suspect's ignorance of charges: The police have no obligation to notify D accurately of the charges against him, or of the matters to which the interrogation will pertain. Even if D believes that he will be interrogated about a minor matter, and is instead questioned about a major crime, the waiver will still be valid. [Colorado v. Spring] [216]
Note: It is not clear whether the above result changes where the police affirmatively misrepresent the nature of the upcoming questioning.
7. Mentally ill defendant: Where a suspect's waiver is caused in major part by D's mental illness, this does not make any difference: as long as the police do not coerce D into waiving his rights, D's mental illness will not impair the validity of his waiver. [Colorado v. Connelly] [216 - 218]
D. Multiple interrogation sessions: Be careful where the suspect undergoes more than one session of interrogation.
1. Right to silence invoked in first session: Suppose that, in the first session, the suspect invokes his right to remain silent. May the police wait several hours, or days, then re-commence interrogation (perhaps giving the warnings anew)?
a. Different crime: Where the second interrogation is about a different crime, and the police give new Miranda warnings prior to the second interrogation, probably a waiver given by the suspect is valid, despite his insistence on remaining silent at the first interrogation. [Michigan v. Mosley] [218]
b. Same crime: Where the second questioning session is on the same crime as the first one, the Supreme Court has never decided how and whether D may undo the effects of his earlier insistence on his rights. Probably, as long as the police end their questioning promptly when D asserts his Miranda rights in the first session, wait at least several hours before resuming, and give new warnings, they may interrogate anew even about the same crime.
2. Lawyer requested in first session: Where D asserts in the first session that he wants a lawyer, it is much harder for the prosecution to show that D later waived this demand. The Court imposes a "bright line" rule that "an accused...having expressed his desire to deal with the police only through counsel, is not subject to further interrogation...until counsel has been made available to him, unless the accused himself initiates further communication...with the police." [Edwards v. Arizona] [219 - 220]
a. Response to questioning: The mere fact that D responds to later police questioning will not mean that D has waived his previously-expressed desire for a lawyer. (Example: The police arrest D and give him his Miranda warnings. He says, "I want a lawyer." The police don't get him a lawyer. Two days later, the police ask him a question about the crime, and D responds. This response will not be admissible against D, because once he asserted the right to a lawyer, this assertion could not be waived by anything less than a conversation initiated by D. D's mere response to police-initiated questions is not sufficient. [Edwards, supra.])
b. Questioning about different crime: This "bright line" rule applies even where the police subsequently wish to question the suspect about a different crime than the one they were questioning him about when he first requested the lawyer. [Arizona v. Roberson] [223]
c. Request must be unambiguous: The "bright line" rule only applies where the suspect clearly asserts his right to have counsel present during a custodial interrogation. If the suspect makes an ambiguous request -- one which a reasonable observer would think might or might not be a request for counsel -- the questioning does not have to stop. In fact, the police do not even have to (though they may) ask clarifying questions to determine whether the suspect really does want a lawyer. [Davis v. U.S.] [221]
d. Lawyer must be present: Suppose that the suspect asks for a lawyer, consults with this lawyer, and is subsequently questioned by the police outside the lawyer's presence. This questioning violates the "bright line" rule. That is, the lawyer must be present during the subsequent questioning, and allowing the suspect a mere consultation before the questioning will be no substitute for this. [Minnick v. Mississippi] [223]
3. D waives all rights in first session: If the suspect waives all of his Miranda rights during the first session, probably the police are not required to repeat the warnings at a subsequent questioning session. [223]
IX. OTHER MIRANDA ISSUES
A. Grand jury witnesses: A witness who is subpoenaed to appear before a grand jury probably does not have to be given Miranda warnings. [225]
B. Impeachment: A confession obtained in violation of Miranda may not be introduced as part of the prosecution's case-in-chief. But the prosecution may use such statements to impeach D's testimony at trial. [Harris v. New York] (Example: D is charged with selling heroin on two occasions. At his trial, he takes the stand and denies making one of these sales. The prosecution then reads a statement, obtained in violation of Miranda, in which D admits making both sales. Held, even though the statement was made without benefit of Miranda warnings, it may be used to impeach D's trial testimony. [Harris, supra.]) [226]
1. Coercion: Although a statement obtained in violation of Miranda may be admissible for impeachment purposes, it may not be used even for this limited purpose if it was the product of coercion, or was involuntary for some other reason. [Mincey v. Arizona] [227]
C. Use of D's silence:
1. Generally not allowed: The prosecution may not introduce in court the fact that D remained silent while under police questioning. In other words, the fact that D has asserted his Miranda rights may not be used to weaken D's case before the jury. [Doyle v. Ohio] (Example: At trial, D raises an alibi defense, that he was in another city at the time of the crime. The prosecution attempts to impeach this alibi by showing that when D was questioned by the police while under custody, he failed to assert this alibi, as one would expect he would have done if the alibi had been genuine. The prosecution may not impeach D in this manner.) [227 - 228]
2. Pre-arrest silence: But this rule applies only to D's silence after arrest and Miranda warnings -- it does not apply to pre-arrest silence by the suspect. (Example: D raises a self-defense claim at his murder trial. The prosecution impeaches this claim by pointing out that for two weeks after the murder, D failed to go to the police to surrender himself or to explain that he killed in self-defense. Held, this prosecution use of D's silence was proper, because D's silence did not occur while he was in custody. [Jenkins v. Anderson]) [228]
Chapter 6
LINEUPS AND OTHER
PRE-TRIAL IDENTIFICATION
PROCEDURES
I. I.D. PROCEDURES GENERALLY
A. Various procedures: There are a number of methods by which the police may get an identification of a suspect to link him with a crime: lineups, fingerprints, blood samples, voice-prints, the use of photographs, etc.
B. Possible constitutional problems: There are four plausible constitutional objections that D may be able to make to the use of one of these procedures against him: (1) that it violates D's privilege against self-incrimination; (2) that it constituted an unreasonable search or seizure in violation of the Fourth Amendment; (3) that if D did not have a lawyer present, the use of the procedure violated his Sixth Amendment right to counsel; and (4) that the procedure was so suggestive that it violated D's Fifth/Fourteenth Amendment right to due process. [239]
C. Right to counsel as main weapon: The objection that is most likely to succeed is that use of one of these procedures (especially a lineup or show-up) without D's lawyer present violated his right to counsel; the next most-likely to succeed is the argument that the procedure was so suggestive that it violated due process (most likely to work where the procedure was a lineup, show-up, or photo I.D.). The self-incrimination argument will almost never work, and the search and seizure argument has a chance of working only if the police lacked a warrant and/or probable cause.
II. THE PRIVILEGE AGAINST SELF-INCRIMINATION
A. General rule: Physical identification procedures -- fingerprints, blood samples, voice prints, etc. -- will generally not trigger the Fifth Amendment privilege against self-incrimination. That privilege protects only against compulsion to give "testimony or communicative evidence," and these physical procedures have been found not to be "testimony or communicative." [Schmerber v. California] (Example: D is arrested for drunk driving. A blood sample is forcibly taken from him over his objection, by a physician acting under the direction of the police. Held, D's privilege against self-incrimination was not violated by the forcible test, because the privilege protects only against being compelled to give testimony or communicative evidence, not being forced to give real or physical evidence. [Schmerber, supra.]) [240 - 240]
1. Other procedures: This principle has been broadly applied, so that D has no self-incrimination privilege against being forced to: (1) appear in a lineup; (2) speak for identification; (3) give fingerprints; (4) be photographed; (5) be measured; (6) be required to make physical movements; (7) give a handwriting sample; or (8) be examined by ultraviolet light. [241]
2. Non-cooperation: If the suspect refuses to cooperate with a request to provide one of these sources of physical identification, the court may order him to do so. If he still refuses, the court may hold him in contempt and jail him. [241 - 241]
a. Prosecution's right to comment: Furthermore, if D refuses to cooperate with such a request, the prosecution may comment on that fact at D's later trial.
III. THE RIGHT TO COUNSEL AT PRE-TRIAL CONFRONTATIONS
A. Rule generally: A suspect against whom formal criminal proceedings have been commenced has an absolute right to have counsel present at any pre-trial confrontation procedure. Such confrontations include both lineups (in which a witness picks the suspect out of a group of persons) and show-ups (in which the witness is shown only the suspect and asked whether the suspect is the perpetrator). [U.S. v. Wade; Gilbert v. California] [242]
Example: D is indicted for robbery, arrested, and brought to the police station. He is placed in a lineup with other men of similar appearance. V, the robbery victim, is asked to identify the perpetrator. V picks D out of the lineup. Unless the police offered D the chance to have counsel present at the lineup, the results of the lineup will not be admissible against D at his criminal trial.
1. Effect on in-court I.D.: Furthermore, if the confrontation is conducted in violation of the right of counsel, the prosecution will not only be barred from introducing at trial the fact that D was picked out of the lineup, but may even be barred from having the witness who made the identification (V in the above example) testify in court that the person sitting in the dock is the person observed by the witness at the scene of the crime. Once the lineup is shown to have been improper, the prosecution will have to come up with "clear and convincing evidence" that the in-court identification is not the "fruit of the poisonous tree" (i.e., the product of the improper lineup identification). [243]
B. Waiver: The right to have counsel at the pre-trial confrontation proceeding may be waived. But the waiver must be an "intelligent" one; probably, the police must inform D of his right to counsel, and D must be capable of understanding that right and must voluntarily choose to give it up. [244]
C. Exceptions to the right:
1. Before formal proceedings against D: The right to have counsel at the pre-trial confrontation probably applies only to confrontations occurring after the institution of formal proceedings against the suspect. [Kirby v. Illinois] The right will be triggered by the fact that D has been formally charged, given a preliminary hearing, indicted, arraigned, or otherwise subjected to formal judiciary proceedings. Probably the right is triggered if an arrest warrant is issued; but the right is probably not triggered if D has merely been arrested without a warrant and then put in the lineup or show-up. Certainly the right seems not to be triggered where the police have not even arrested D yet, but have asked him to voluntarily appear in a lineup, and D agrees. [245]
2. Photo I.D.: The right to counsel does not apply where a witness views still or moving pictures of the suspect for identification purposes. [246]
Example: D is not present when the police bring photos of D, together with photos of innocent people, to V, and ask V to pull the photo of the perpetrator from the group. The fact that D has not been given a chance to have a lawyer present during this procedure makes no difference, because D has no Sixth Amendment right to counsel in this non-face-to-face situation. [U.S. v. Ash]
Note: But the due process right not to be subjected to "unduly suggestive" procedures may be triggered in this photo I.D. situation, as discussed below.
3. Scientific I.D. procedures: No Sixth Amendment right to counsel attaches where scientific methods, as opposed to eye witness identification procedures, are used to identify D as the perpetrator. Thus if the police extract or analyze D's fingerprints, blood samples, clothing, hair, voice, handwriting samples, etc., D does not have a right to have counsel present during these extractions or examinations. [246]
IV. DUE PROCESS LIMITS ON I.D. PROCEDURES
A. Suggestive procedures: Even where the right to counsel is never triggered by an identification procedure (or has been triggered but complied with), D may be able to exclude the resulting identification on the grounds that it violated his due process rights. To do this, D will have to show that, viewed by the "totality of the circumstances," the identification procedure was so "unnecessarily suggestive" and so conducive to mistaken identification, as to be deeply unfair to D. [247]
Example: D is suspected of robbery. D is lined up with men several inches shorter than he. Only D wears a jacket similar to that known to have been used by the robber. After V is unable to positively identify anyone, the police then use a one-man show-up of D. When V is still uncertain, the police put on, several days later, a second lineup, in which D is the only repeater from the previous lineup.
Held, the procedures used here were so suggestive that an identification of D as the perpetrator was "all but inevitable." Therefore, the fact that V picked D out of the second lineup must be excluded from D's trial, as a violation of his due process rights. (This is true regardless of whether D had, or used, any right to have counsel present.) [Foster v. California]
B. Suggestive procedures allowed if reliable: But an identification procedure is not violative of due process if the court finds that it is reliable (i.e., not likely to cause error), even if it is somewhat suggestive. (Example: If V has a long time to view the perpetrator during the crime, under adequate light, up close, these facts will make it more likely that the resulting identification procedures are fair to D, even if there is some suggestiveness during the procedures themselves. Similarly, the fact that V is very certain of the identification, or that V has given an extremely thorough description of the perpetrator before the identification procedure, will make the court more likely to uphold it. [Neil v. Biggers]) [247 - 248]
C. Photo I.D.s: Where a witness identifies the suspect through the use of photographs, the "totality of the circumstances" test is used to determine whether D's due process rights have been violated, just as this test is used in the lineup or show-up situation. [Simmons v. U.S.; Manson v. Brathwaite] [248]
Example: The photo I.D. is more likely to be upheld if the police show V photographs of numerous people -- without hinting to V which photo they believe to be of the prime suspect -- than if the police show one photo to V, and say, "Is this the guy?"
1. Must be very likely to be mistaken: As with the lineup and show-up situation, a due process violation will be found only if the photo I.D. session is very likely to have produced a misidentification. The fact that the procedure is somewhat "suggestive" will not be enough. Thus if the victim had an usually good opportunity to view the perpetrator, or was unusually experienced at identifying perpetrators, this will probably overcome some suggestiveness in the procedure (e.g., the use of only a single photo). [See Manson, supra.]
Chapter 7
THE EXCLUSIONARY RULE
I. THE RULE GENERALLY
A. Statement of rule: The "exclusionary rule" provides that evidence obtained by violating D's constitutional rights may not be introduced by the prosecution at D's criminal trial, at least for purposes of providing direct proof of D's guilt. [257]
Example: A car driven by D is randomly stopped by Officer, who has no reasonable grounds for suspecting D of any wrongdoing. Officer requires D to leave the car, and then searches the car. In the car's trunk, Officer finds heroin. At D's trial for possession of heroin, the prosecution will not be permitted to introduce the heroin itself (or the fact that the heroin was found in D's car) against D. The reason is that the discovery and seizure of the heroin was a direct result of the illegal stop and search, and any evidence directly derived from violation of D's constitutional rights is prevented by the exclusionary rule from being introduced against D as part of the prosecution's case in chief.
B. Judge-made rule: The exclusionary rule is a judge-made, not statutory, rule. Over the years, the rule has been shaped by a long series of Supreme Court decisions. The rule is binding on both state and federal courts. [259]
1. Not constitutionally required: The Supreme Court has held that the exclusionary rule is not required by the Constitution. [U.S. v. Leon] Instead, the rule has been created by the Supreme Court as a means of deterring the police from violating the Fourth, Fifth and other Amendments.
C. Dwindling application: In general, the scope of the exclusionary rule has been steadily cut back during the Burger and Rehnquist years.
II. STANDING TO ASSERT THE EXCLUSIONARY RULE
A. Standing rule generally: In general, D may assert the exclusionary rule only to bar evidence obtained through violation of his own constitutional rights. That is, D may not keep out evidence obtained through police action that was a violation of X's rights but not a violation of D's own rights. [259]
Example: The police illegally wire-tap a conversation between D1 and X (without the knowledge of either). Statements made in this conversation are used at a trial of D2. D2 argues that since the evidence was obtained by a violation of constitutional rights (the rights of D1), the evidence should not be usable against anyone, including D2. Held, for the prosecution. Evidence obtained by violation of the Fourth Amendment or any other constitutional provision may only be excluded by a person whose own rights were violated. [Alderman v. U.S.]
B. Confession cases: The standing requirement means that in the case of an illegally-obtained confession, only the person who makes the confession may have it barred by the exclusionary rule. (Example: Suspect A confesses without being given the required Miranda warnings. In his confession, A implicates B. The confession may still be introduced in evidence against B (though not against A), because B's constitutional rights were not violated by the obtaining of the confession.) [261]
C. Search and seizure cases: In search and seizure cases, the standing requirement means that D may seek to exclude evidence derived from a search and seizure only if his own "legitimate expectation of privacy" was violated by the search. [Rakas v. Illinois] [261 - 267]
1. Possessory interest in items seized: This means that the mere fact that D has a possessory interest in the items seized is not by itself automatically enough to allow D to challenge the constitutionality of the seizure. Only if D had a legitimate expectation of privacy with respect to the items seized, may D exclude those items. (Example: D and his friend Cox are both searched by the police. In Cox's handbag, the police find 1,800 tablets of LSD and other drugs. D claims ownership of these drugs, and can prove that he owns them. The search and seizure occurred without probable cause. D tries to have the drugs suppressed from his drug possession trial. Held, for the prosecution. Even though D owned the drugs, D's own rights were not violated by the search of Cox's handbag, because once D placed the drugs in Cox's handbag, he had no further legitimate expectation of privacy with respect to those drugs. [Rawlings v. Kentucky]) [262]
2. Presence at scene of search: Similarly, the fact that D is legitimately on the premises where a search takes place does not mean that D can exclude the fruits of the search if the search was illegal. Again, only if D had a legitimate expectation of privacy with respect to the areas where the incriminating materials were found, may D benefit from the exclusionary rule. (Example: D is riding as a passenger in a car that is illegally searched by the police. The police find a sawed-off rifle under the passenger seat occupied by D. Held, the mere fact that D was on the scene during the search did not give him standing to assert the exclusionary rule. Since D did not have a legitimate expectation of privacy as to the area under his seat, he could not assert the exclusionary rule and the rifle could be admitted against him. [Rakas v. Illinois]) [263 - 264]
3. Co-conspirators: Where one member of a conspiracy is stopped or searched, the other members of the conspiracy do not automatically get standing to object to the stop or search merely by virtue of their membership. [U.S. v. Padilla] (Example: Suppose D1 is driving a car as part of a drug-dealing conspiracy of which D2 is a part, and the car is stopped by police and searched. D2 does not get standing to object to the search merely because he and D1 are part of a single conspiracy and the car is being used in that conspiracy -- D2 must show that he has a privacy interest in the car or its contents, just as if there was no conspiracy.) [265]
III. DERIVATIVE EVIDENCE
A. Derivative evidence generally: The exclusionary rule clearly applies to evidence that is the direct result of a violation of D's rights (e.g., evidence is seized from D's premises during an illegal search). But the exclusionary rule also applies to some "derivative evidence," that is, evidence that is only indirectly obtained by a violation of D's rights. In general, if police wrongdoing leads in a relatively short, unbroken, chain to evidence, that evidence will be barred by the exclusionary rule, even though the evidence was not the direct and immediate fruit of the illegality. The concept is frequently referred to as the "poisonous tree doctrine": once the original evidence (the "tree") is shown to have been unlawfully obtained, all evidence stemming from it (the "fruit" of the poisonous tree) is equally unusable. [268]
Example: Federal agents, acting without probable cause, break into Toy's apartment and handcuff him. Toy makes a statement accusing Yee of selling narcotics. The agents go to Yee, from whom they seize heroin.
Held, the drugs seized from Yee are "fruits of the poisonous tree," since they were seized as the direct result of the agents' illegal entry into Toy's apartment. Therefore, the drugs from Yee cannot be introduced against Toy, under the exclusionary rule. [Wong Sun v. U.S.]
B. The independent source exception: The "fruits of the poisonous tree" doctrine has a couple of major exceptions, one of which is known as the "independent source" exception. When the police have two paths leading to information, and only one of these paths begins with illegality, the evidence is not deemed fruit of the poisonous tree, and is not barred by the exclusionary rule. [269 - 272]
1. Use for warrantless arrests or seizures: The main utility of the "independent source" exception arises where the police have probable cause to obtain a search warrant, which would have led them to certain evidence; instead, the police make an illegal search, discover evidence, then go back and get a warrant. The law now seems to be that since the police could have lawfully obtained a warrant, they are deemed to have had an "independent source" for the evidence, so the evidence will not be barred by the exclusionary rule even though it was illegally obtained. [270 - 272]
a. Scope: More precisely, evidence will be admissible under this branch of the "independent source" exception when three requirements are satisfied:
i. Illegally on premises: First, the method by which the police discovered or seized the evidence or contraband in question must have been a violation of the Fourth Amendment (e.g., a warrantless search of the premises when a warrant was required).
ii. Probable cause for search warrant: Second, although the police did not have a search warrant, at the moment of entry they must have had knowledge that would have entitled them to procure a search warrant. That is, they must have had probable cause to believe that contraband, or evidence of crime, would be found on the premises. (This theoretical availability of a warrant is the "independent source" that justifies the admission of the evidence even though the police were acting illegally at the moment they seized the evidence.)
iii. Would have gotten warrant anyway: Third, the police must show that they would probably have eventually applied for a search warrant even had they not engaged in the illegality.
Example: The police have probable cause to arrest D for narcotics violations, and probable cause to search his apartment for evidence. The police arrest D outside his apartment. They do not get a search warrant, even though warrantless entry is not allowed without one. They then enter the apartment, where they see narcotics paraphernalia. They post agents to prevent destruction of evidence, and 20 hours later get a warrant; they then conduct a search which turns up narcotics that they had not previously observed.
Held, the seized narcotics are not the fruit of the poisonous tree, and thus not excludable in D's trial, because the police had an independent source for discovery those narcotics -- since the police were already, prior to the illegal entry, entitled to get a search warrant, they could have staked out the apartment from the outside, gotten the warrant and seized the very same evidence. [Segura v. U.S.] [270]
2. Inevitable discovery: There is a second exception related to the "independent source" exception, called the "inevitable discovery" exception. Evidence may be admitted if it would "inevitably" have been discovered by other police techniques had it not first been obtained through the illegal discovery. [272 - 273]
a. Discovery of weapon or body: The "inevitable discovery" rule is most often applied where the evidence illegally obtained is a weapon or body, which the police would eventually have discovered anyway, even without the illegality. (Example: The police, in violation of Miranda, induce D to reveal the location of the body of his murder victim. The police are then able to find the body, and evidence near the body that relates to the manner of death. D seeks to suppress this evidence at trial, on the theory that it was procured by violation of his Miranda rights. Held, because the facts were such that the police would inevitably have discovered the location of the body eventually anyway, even without D's statement, the evidence need not be excluded. This is true even though the police may have used bad faith in tricking D into revealing the location -- there is no "good faith" requirement for application of the inevitable discovery exception. [Nix v. Williams]) [272]
C. The "purged taint" exception: A second very important exception to the "fruit of the poisonous tree" doctrine is the "purged taint" exception. The idea is that if enough additional factors intervene between the original illegality and the final discovery of the evidence, the link between the two is so tenuous that the exclusionary rule should not be applied. In this situation, the intervening factors are said to be enough to have "purged the taint" of the original illegal police conduct. [273]
Example: Wong Sun is arrested without probable cause, arraigned, and released on his own recognizance. Several days later, he voluntarily comes to the police station, where he receives Miranda warnings and makes an incriminating statement.
Held, the statement may be introduced against Wong Sun, despite the exclusionary rule. It is true that Wong Sun's statement in some sense "derived" from his original illegal arrest. But the fact that Wong Sun had been released for several days between arrest and statement, and the voluntariness of his return to make the statement, so attenuated the connection between arrest and statement as to purge the taint of the illegality. [Wong Sun v. U.S.]
1. Illegality leads police to focus on particular suspect: If the illegality (an illegal search, arrest, lineup, etc.) leads the police to focus on a particular suspect they were not previously focusing on, usually the final arrest of the suspect will not be found to be tainted by the original illegality: the full-scale investigation that the police conduct between the time they first focus on the suspect and the time they arrest him is usually enough to purge this taint. [275 - 276]
2. Lead to different crime: Now suppose the police are investigating one crime, and an illegal action they commit leads them to evidence of a completely different crime. Here, too, probably the evidence of the new crime may be introduced despite the earlier illegality. (Example: D is illegally arrested for burglarizing an empty house, and is immediately photographed. Weeks later, the police show the photo to a witness, who identifies the person in the photo as having been one of three men who robbed a bank recently during the daytime. Probably this later-robbery I.D. would not be deemed tainted by the original illegal arrest and photograph.) [276]
3. Lead to witness: One of the fruits of police illegality may be the discovery of the existence of witnesses who can give testimony against D. In general, D is rarely successful in arguing that the testimony of the live witness should be suppressed because the witness would not have been found but for the illegality -- it is far easier to suppress an "inanimate" fruit of illegality (e.g., contraband, or evidence of crime) than it is to suppress "animate" fruits such as witnesses who testify. [See U.S. v. Ceccolini] [277 - 279]
Example: The police, acting without probable cause, arrest D on suspicion of being one of two men who burglarized a particular premises. They interrogate D without giving him his Miranda warnings. D implicates X, who he says was the other person who took part in the burglary. The police, who had no previous reason to suspect X, accost X, and convince him to turn state's evidence against D. X's evidence will probably be admissible against D, even though it is in a sense the fruit of the original illegal arrest and interrogation of D -- the courts hesitate to apply the "fruits of the poisonous tree" doctrine to a fruit consisting of a witness' live testimony.
4. Confession as tainted fruit: A confession may also be found to be tainted fruit. This is especially likely to be the case where the confession stems directly from the illegal arrest of the suspect who gives the confession. In general, where the confession comes in the period of custody immediately following the arrest, the court is likely to find that the confession is tainted fruit, and must therefore be excluded from the trial of the confessor. [279]
Example: Acting without probable cause, the police arrest D on suspicion of robbery. While D is in custody, the police give him his Miranda warnings, and he waives his rights, then confesses. A court would almost certainly hold that D's confession must be excluded as a fruit of the illegal arrest.
a. Mirandizing of D not sufficient: It is clear that the mere fact that D was given his Miranda warnings before confessing is not sufficient to purge the taint of the earlier illegality. [Brown v. Illinois] [279 - 280]
b. Other factors: But the fact that the police gave Miranda warnings is a factor that the court will consider, in addition to other factors, in determining whether the confession was sufficiently distinct from the earlier illegality that it should be deemed untainted. Other factors that the courts consider are:
i. Time delay: How long a time elapsed between the illegality and the confession (the longer the time, the more likely the taint is to have been purged);
ii. Police intent: The police intent in carrying out the illegal arrest or other illegal act (so that if the police knowingly arrest D illegally, for the purpose of being able to interrogate him, the taint will almost certainly not be purged); and
iii. Intervening factors: Whether intervening events have occurred that weaken the causal link between the illegality and the confession. (Example: If D is illegally arrested, then released from custody for several days, during which he consults with friends and relatives, a voluntary confession by D thereafter is much less likely to be found to be tainted than if D confessed without ever having left custody and without consulting with anyone.)
c. Arrest without required warrant but with probable cause: The taint is less likely to be found to be purged where the police have arrested D without probable cause, than where the arrest is made with probable cause but without a required warrant. That is, lack of a required warrant is viewed as much less serious, and less tainting, than lack of probable cause. [New York v. Harris] [282]
d. Second confession as fruit of prior confession: Suppose D makes an inadmissible confession, and shortly thereafter makes a second, otherwise-admissible, confession. Does the illegality surrounding the first confession "taint" the second confession? Defendants have often argued that the answer should be "yes," because of the "cat out of the bag" theory (under which once a suspect has confessed without receiving required Miranda warnings, he will feel that since he has already "let the cat out of the bag" there is little to be gained by remaining silent the second time). The Supreme Court rejects this "cat out of the bag" theory -- if the second confession is "knowingly and voluntarily made," it will not be invalidated merely because there was a prior, illegally-obtained confession having the same substance. [Oregon v. Elstad] [283]
5. Confession as "poisonous tree": Suppose the police illegally obtain a confession, and this confession furnishes them with leads to other evidence (e.g., inanimate objects or witnesses who can testify). May this confession itself be a "poisonous tree" that taints the leads to other evidence? The Supreme Court has not yet spoken on this issue, but the answer will probably be "no," at least where the confession is illegally obtained only because of a lack of Miranda warnings, rather than because it is made following a no-probable-cause arrest. (Example: D is properly arrested, on a charge of murder, then interrogated without the required Miranda warnings. He incriminates himself by telling the police where the body can be found. The police dig up the body, and the prosecutor tries to use the location and condition of the body -- but not the fact that D knew where the body was located -- in the case against D. Probably this evidence will be allowed, though the Supreme Court has not yet spoken on this issue.) [286]
IV. COLLATERAL USE EXCEPTIONS
A. Collateral use generally: The exclusionary rule basically applies only to evidence presented by the prosecution as part of its case in chief at D's trial. In other contexts, the rule is much less likely to apply, as described below.
B. Impeachment at trial: Thus illegally-obtained evidence may be used to impeach the defendant's trial testimony, even though it cannot be used in the prosecution's direct case. [Harris v. N.Y.] [289]
1. Statements made in direct testimony: Most obviously, illegally-obtained evidence may be used to impeach statements made by D during his direct testimony. (Example: D is arrested on suspicion of burglarizing a particular premises. The police do not give him the required Miranda warnings. They ask him where he was on a particular evening, and he replies that he was at his girlfriend's house. At trial, during D's direct testimony after taking the stand, D says that at the time in question, he was at home. The prosecutor may bring out on cross-examination the fact that D told a different story in his non-Mirandized confession.) [289]
2. Statements made during cross-examination: Furthermore, illegally-obtained evidence may be used by the prosecution to impeach even statements that are made by D on cross-examination. So the prosecution can elicit one story from D during cross-examination, then impeach D by showing he told a different story while making his otherwise-inadmissible confession. [289 - 289]
3. Impeachment of defense witnesses: But illegally-obtained evidence may not be used to impeach the testimony of defense witnesses other than the defendant himself. [James v. Illinois] (Example: While D is under arrest for burglary, and without receiving Miranda warnings, D states that he was at home at the time of a burglary under investigation. At trial, D presents as a witness W, D's girlfriend, who says that at the time in question, D was with W at W's house. The prosecution may not impeach W's testimony by introducing D's contrary statement made during the un-Mirandized confession.) [290]
C. Impeachment in grand jury proceedings: A grand jury witness cannot prevent illegally-obtained evidence from being introduced against him during the grand jury proceeding. [U.S. v. Calandra] [291]
V. THE "GOOD FAITH" EXCEPTION
A. The exception generally: The exclusionary rule does not bar evidence that was obtained by officers acting in reasonable reliance on a search warrant issued by a proper magistrate but ultimately found to be unsupported by probable cause. [U.S. v. Leon] [293 - 299]
Example: The police, relying on information from an informant as well as their own investigations, obtain a search warrant that is valid on its face. They search several premises under the warrant, obtaining evidence of narcotics violations. Later, a judge holds that the information presented to the magistrate did not establish probable cause for the search. Now, the issue is whether the illegally-seized evidence may be admitted against D.
Held, the evidence may be admitted against D, because the exclusionary rule should not be applied where officers have a good-faith, objectively reasonable belief that they have probable cause, and the warrant is issued according to proper procedures. [Leon, supra.]
1. Reliance on non-existent arrest warrant: The "good faith" exception has been extended to one additional situation: if the police reasonably believe that there is an outstanding warrant for the arrest of D, and search D while arresting him, the fruits will be admissible even if it turns out that the arrest warrant was not in fact outstanding (at least where the confusion resulted from a court error rather than a police error.) [Arizona v. Evans]
2. Fourth Amendment only: So far, the "good faith exception" summarized above applies only to evidence obtained in violation of the Fourth Amendment (search/seizure and arrest), not evidence obtained in violation of other amendments (e.g., the Fifth or Sixth Amendments, each of which can be violated by, say, interrogation without benefit of Miranda warnings).
3. Police must behave with objective reasonableness: The exception applies only where the police behave in good faith and in an objectively reasonable manner. In particular, the exception does not apply if the police officer who prepares the affidavit for a search warrant knows that the information in it is false, or recklessly disregards its truth or falsity. Also, the affidavit must on its face seem to be valid, and to be based on probable cause.
Chapter 8
THE RIGHT TO COUNSEL
I. THE INDIGENT'S RIGHT TO COUNSEL
A. Introduction: The Sixth Amendment says that "In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defense." [310]
1. Right where jail is at stake: The Sixth Amendment right means that an indigent defendant has the right to have counsel appointed for him by the government in any prosecution where the accused can be sent to jail. Thus in any felony prosecution, and in any misdemeanor prosecution for which the sentence will be a jail term, the indigent has the right to appointed counsel.
2. Right to retained counsel: The Sixth Amendment also means that the government cannot materially interfere with a non-indigent defendant's right to retain (i.e., pay for) his own private lawyer.
B. The right to appointed counsel generally: We focus here mainly on the right of the indigent to have counsel appointed for him by the government, not on the non-indigent defendant's right to retain counsel.
1. Applicable to states: The Sixth Amendment right to counsel applies to the states, not just the federal government. [Gideon v. Wainwright] [312]
2. Various stages: The right to appointed counsel does not mean merely that the accused has the right to have a lawyer at trial; other parts of the prosecution that are found to represent a "critical stage" in the proceedings (e.g., the arraignment) also trigger the right to appointed counsel. This is discussed more extensively below.
3. Right to effective assistance: The right to counsel includes the right to effective assistance -- thus if the appointed counsel does not meet a certain minimal standard of competence, the Sixth Amendment has been violated. This aspect, too, is discussed below. [314]
C. Proceedings where the right applies:
1. Felonies: The right to appointed counsel clearly applies where the defendant is charged with a felony (i.e., a crime for which a prison sentence of more than a year is authorized).
2. Misdemeanors with potential jail sentence: Additionally, the right applies in a misdemeanor prosecution, if the defendant is going to be sentenced to even a brief jail term. [Argersinger v. Hamlin] [315]
a. Jail sentence possible but not imposed: But if an indigent D is not sentenced to incarceration, the state is not required to appoint counsel for him, even if the offense is one which is punishable by imprisonment. [Scott v. Illinois] [315]
b. Conviction used to increase sentence for later crime: Also, a misdemeanor conviction may be used to increase the permissible prison sentence for a subsequent conviction, even though D was not offered appointed counsel during the first proceeding. [Nichols v. U.S.] [316 - 316]
3. Juvenile delinquency proceedings: The right to appointed counsel applies in a juvenile delinquency proceeding, if the youthful defendant may be committed to an institution (even a "youth facility" or "reform school" rather than a prison) upon conviction. [In re Gault] [316]
D. Stages at which the right to counsel applies: In addition to the trial itself, the right to counsel applies at various other stages of the proceedings:
1. Police investigation: A suspect will frequently have the right to counsel during the period in which the police are conducting their investigation. But this right generally does not derive from the Sixth Amendment; instead, it stems from the Fifth Amendment's right against self-incrimination. (Example: Although a defendant in custody has the right to an appointed lawyer before being questioned by the police, under Miranda, this right derives from the Fifth Amendment, not the Sixth.) [317]
2. The "critical stage" doctrine: The Sixth Amendment is triggered wherever there is a "critical stage" of the proceedings. In brief, a stage will be "critical" if D is compelled to make a decision which may later be formally used against him.
a. Initial appearance: Thus the initial appearance, the preliminary hearing, and the arraignment are all likely to be found, in a particular case, to be critical stages. (But if local procedures make it clear that nothing done by D at a particular stage binds him, then presumably counsel does not have to be appointed.) [317]
b. Post-trial stages: Stages occurring after the trial may also be found "critical," thus triggering the right to counsel. For instance, a post-trial sentencing will normally be a "critical stage," requiring the furnishing of D with an attorney. [Mempa v. Rhay] Similarly, where the court orders a psychiatric examination to determine whether a murder convict deserves the death penalty, the convict is entitled to consult a lawyer before submitting to the exam. [Estelle v. Smith] [319]
i. Probation revocation not covered: But there is no right of counsel in a proceeding to revoke the defendant's probation. [Gagnon v. Scarpelli] [319]
c. Appeals: A convicted defendant's right to appointed counsel during his appeals depends on the nature of the appeal. A defendant has the right to appointed counsel for his first appeal as of right, i.e., the appeal made available to all convicted defendants. [Douglas v. California] [320]
i. Discretionary review: But D has no right to appointed counsel to assist with his applications for discretionary review. That is, once D's conviction has been affirmed by the first appellate court, and the government provides a second discretionary review (e.g., discretionary review by the state supreme court, or petition for certiorari to the U.S. Supreme Court), D is on his own. [Ross v. Moffitt]
d. Habeas corpus: A defendant does not have a right to appointed counsel for pursuing federal habeas corpus relief after he has exhausted state remedies. But he does have a limited Sixth Amendment right to legal assistance: prison authorities are required to assist the inmate in filing habeas corpus papers. The prison must give at least one of the following forms of assistance: (1) an adequate law library; (2) the training of some inmates as paralegal assistants; (3) the use of non-prisoner paralegals and law students; or (4) the use of lawyers, perhaps on a part-time volunteer basis. [Bounds v. Smith] [320]
II. WAIVER OF THE RIGHT TO COUNSEL
A. Appointed vs. retained: In both the appointed-counsel and retained-counsel situations, the defendant may be found to have waived his Sixth Amendment right to counsel. Essentially the same standards apply for both situations. [321]
B. The "knowingly and intelligently" standard: D will be found to have waived his right to counsel only if he acted "knowingly and intelligently." However, the government must prove merely by a "preponderance of the evidence" that D acted knowingly and intelligently, a relatively easy-to-satisfy standard.
1. Miranda warnings suffice: If D is given his Miranda warnings, and does not ask for counsel, this will be found to be a valid waiver of his Sixth Amendment right to counsel.
C. Guilty plea: Waiver of the right to counsel is judged quite strictly where it is followed by entry of a guilty plea. D must be shown to have been aware of the charges against him, and to have understood the full significance of his decision to waive counsel, before the guilty plea will be accepted. [322]
D. Right to defend oneself: The Sixth Amendment guarantees the right of a defendant to proceed pro se, i.e., to represent himself without counsel. [Faretta v. California] (By choosing to represent himself, D waives any later claim that he was denied the effective assistance of counsel.) [322]
III. ENTITLEMENTS OF THE RIGHT TO COUNSEL
A. Effectiveness of counsel: The Sixth Amendment entitles D not only to have a lawyer, but to have the "effective assistance" of counsel.
1. Standard: Where a lawyer has actually participated in D's trial, D has a hard burden to show that he did not receive "effective assistance." D must show both that: (1) counsel's performance was "deficient," in the sense that counsel was not a "reasonably competent attorney"; and (2) the deficiencies were prejudicial to the defense, in the sense that there is a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." [Strickland v. Washington] [323]
2. Other causes of ineffectiveness: Apart from actual blunders made by the lawyer at trial, some other events may be found to amount to a denial of effective assistance. These include: (1) that the court refused to grant a postponement to allow a newly-appointed lawyer adequate time to prepare for trial; (2) that the lawyer was not given a reasonable right of access to his client before or during the trial; or (3) that the lawyer represented multiple defendants, and the interests of those defendants conflicted to the detriment of D. [324 - 327]
B. Other aspects of the Sixth Amendment:
1. Expert assistance: The defendant may have a Sixth Amendment right to have the state pay for an expert to be retained on his behalf. (Example: If D raises the insanity defense, he is entitled to have the state pay for a psychiatrist to examine him, and to have that psychiatrist give testimony as to D's sanity.) [327]
2. Fees and transcripts: The defendant is entitled to have the state pay for any transcripts and records necessary to present an effective appeal, and any related fees. [327]
C. Secret agents: Once a suspect has been indicted and has counsel, it is a violation of the right of counsel for a secret agent to deliberately obtain incriminating statements from D in the absence of counsel, and to pass these on to the prosecution. [Massiah v. U.S.] [328]
1. Must be "deliberately elicited": But this ban on secret agents applies only where the agent "deliberately elicits" the incriminating testimony, not where the agent merely "keeps his ears open." [Kuhlmann v. Wilson] [330]
a. Does not cover pre-indictment situations: Even the ban on the deliberate eliciting of confidences by secret agents applies only after formal proceedings (e.g., an indictment) have begun against D. So during the pre-indictment investigation stage, the police may use a secret agent to entrap D even if the police or agent know that D has a regular lawyer, and even though the agent passes the confidences on to the police or prosecutors.
2. Presence at attorney-client conference: The presence of an undercover agent at a conference between a suspect and his lawyer will also be a violation of the suspect's right to counsel, if materials from this conference are used by the prosecution, at least if the agent goes to the meeting for the purpose of spying (as opposed to going there for the purpose of maintaining his own cover). [330]
Chapter 9
FORMAL PROCEEDINGS
Introductory note: In this last chapter, we cover aspects of the criminal procedure system once formal proceedings have begun against the defendant (as opposed to the investigative phase, covered above).
I. GRAND JURY PROCEEDINGS
A. Grand jury indictment generally: Defendants accused of federal felonies, and some state-court defendants, are "entitled" to a grand jury indictment. [336]
1. Federal practice: The Fifth Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." This provision means that anyone charged with a federal felony (i.e., a federal crime punishable by more than one year of imprisonment) may only be tried following issuance of a grand jury indictment.
2. State courts: The Fifth Amendment's right to a grand jury indictment is one of the two Bill of Rights guarantees that is not binding on the states by means of the Fourteenth Amendment. So each individual state decides whether to require a grand jury indictment. Today, about 19 states require indictment for all felonies, with the remaining states dispensing with the requirement in at least some kinds of felonies.
B. Self-incrimination and immunity: The Fifth Amendment privilege against self-incrimination will frequently entitle a witness who is subpoenaed by a grand jury to refuse to testify. However, this refusal may be overcome by a grant of immunity. [338]
1. The privilege: The privilege against self-incrimination applies in grand jury proceedings -- if the witness believes that the testimony she is being asked to give might incriminate her in a subsequent criminal case (whether in the jurisdiction that is conducting the grand jury investigation, or a different one), she may decline to testify on Fifth Amendment grounds. [Counselman v. Hitchcock] (The Fifth Amendment does not allow the witness to refuse to appear at all -- the witness must appear in response to the subpoena, and must then state for the record the Fifth Amendment claim.) [338]
2. Grant of immunity: The grand jury, acting under the prosecutor's direction, may combat Fifth Amendment claims by granting immunity to the witness. There are two types of immunity: transactional immunity (which protects the witness against any prosecution for the entire transactions about which the witness has testified), and use immunity (a much narrower protection, which protects only against the direct or indirect use of the testimony in a subsequent prosecution). [338 - 339]
a. Use immunity sufficient: Use immunity is sufficient to nullify the witness' Fifth Amendment privilege. [Kastigar v. U.S.] [338] But use immunity is interpreted in a way that is favorable to the defendant -- usually, use immunity requires that any eventual prosecution of the witness be conducted by someone who did not witness or read the transcript of the grand jury testimony.
II. BAIL AND PREVENTIVE DETENTION
A. Bail: The system of bail is the way courts have traditionally dealt with the problem of making sure that D shows up for trial. D is required to post an amount of money known as a "bail bond"; if he does not show up for trial, he forfeits this amount. [339 - 340]
1. Right to non-excessive bail: The Eighth Amendment (applicable in both state and federal proceedings) provides that "excessive bail shall not be required." However, the Bail Clause does not give D a right to affordable bail in all situations -- it merely means that when the court does set bail, it must not do so in an unduly high amount, judged on factors such as the seriousness of the offense, the weight of the evidence against D, D's financial abilities and his character. (Example: If a judge were to set bail of $1 million for an indigent D accused of the non-violent crime of marijuana possession, this might be found to be "excessive" bail, in violation of the Eighth Amendment.) [340]
a. Individualized consideration: The guarantee against excessive bail means that the judge must consider D's individual circumstances in fixing bail. The court may not consider the seriousness of the offense as the sole criterion (so that ability to pay, weight of the evidence, character of D, etc. must all be considered). [340]
b. Defendant's ability to pay: The fact that the defendant cannot afford the bail set in the particular case does not automatically make the bail "excessive" -- D's financial resources are merely one factor to be considered. [340]
B. Preventive detention: A jurisdiction may decide that bail will simply not be allowed at all for certain types of offenses. That is, the state or federal government may set up a "preventive detention" scheme, whereby certain types of defendants are automatically held without bail until trial. But a preventive detention scheme will violate the Eighth Amendment if its procedures do not ensure that only those defendants who are genuinely dangerous or likely to flee are denied release. [341 - 342]
1. Factors to be considered: The jurisdiction may, of course, consider D's likelihood of flight before trial as a factor in whether to deny bail entirely. But the jurisdiction may consider other factors as well, most notably the likelihood that D will, if released before trial, commit additional crimes.
2. Individualized circumstances of defendant: A preventive detention scheme probably must give D the opportunity for a hearing, at which D's individual circumstances (e.g., his dangerous past tendencies, his community ties, his past convictions, etc.) may be considered. (Example: If a state were to provide that bail should automatically be denied without a hearing, and preventive detention ordered, for any defendant charged with any act of murder, this mandatory scheme would almost certainly violate the Bail Clause.) [341]
III. PLEA BARGAINING
A. Plea bargaining generally: Most criminal cases are resolved by plea bargain rather than by trial. To give D an incentive to "settle" the case rather than insist on a trial, the prosecutor normally gives D an inducement of a lighter sentence than what he would get if he were convicted at trial. The three common types of plea bargains are: (1) the plea to a less serious charge (Example: D is allowed to plead guilty to second-degree sexual assault rather than to the rape charge that is supported by the evidence); (2) D pleads guilty to the crime charged, but the prosecutor agrees to recommend a lighter sentence to the judge (but the judge will not necessarily follow the recommendation, though she usually does so); and (3) D pleads to one charge in return for the prosecution's promise to drop other charges that might also have been brought. [342 - 343]
1. Generally enforceable: Plea bargains are generally enforceable. For instance, if D pleads guilty to a charge, is sentenced, and then has a change of heart, he is almost always stuck with his bargain. [342]
2. Prosecutor may refuse to bargain: The prosecutor has no obligation to bargain. Even if the prosecutor routinely offers a plea bargain in other, similar, circumstances, she has a right in a particular case to decide to go to trial without offering a plea bargain. [Weatherford v. Bursey ("There is no constitutional right to plea bargain...")] [343]
B. Promises by prosecutor:
1. Threats by prosecutor: There are relatively few constraints on the prosecutor's right to use threats during the negotiation. For instance, the prosecutor may charge one crime, and then tell D, "If you don't plead guilty to this charge, I'll file more serious charges." So long as the threatened extra charges are reasonably supported by the evidence, D will not be able to plead guilty, then attack the plea on the grounds that he was coerced. This is true even if D shows that the prosecutor has treated him more harshly than the prosecutor treats others accused of the same crime. [343]
a. Threats about third person: But if the prosecutor tries to induce D to plead guilty by offering leniency to a third person (or, conversely, threatens to prosecute the third person if D does not plead guilty), D has a somewhat greater chance of getting the plea bargain overturned on the grounds of duress. This is especially true where the third person is D's spouse, sibling, or child -- but even here, D usually cannot succeed in getting a plea bargain overturned on grounds of duress.
2. Broken promises: The plea bargain is essentially a contract, and the rules of contract law apply. Consequently, if the prosecution fails to honor its part of the bargain, D may usually either "terminate the contract" (i.e., elect to go to trial) or seek "specific performance" (i.e., insist that the terms as originally agreed upon be carried out). [344]
a. Judge disagrees: But D only has the right to receive what the prosecution has promised, and no more. For instance, if the plea bargain is a "lesser sentence" arrangement, in which the prosecutor has promised to recommend a particular lighter sentence, D's constitutional rights are not violated where the prosecutor keeps this part of the bargain but the trial judge unexpectedly imposes a more serious sentence. (But many states, and the federal system, although not constitutionally required to do so, would allow D to withdraw his guilty plea at that moment and go to trial.) [344]
b. Breach by defendant: If D fails to live up to the plea bargain, then the prosecution has the right to elect to terminate the agreement and try D on the originally-charged offense. This is true even if a judgment of conviction has already been entered as the result of the plea bargain. (Example: D agrees to testify against his confederates in return for a lesser charge or lesser sentence. He receives the reduced charge or sentence, then refuses to testify. The prosecution has the right to withdraw the conviction and try D on the original charge.) [Ricketts v. Adamson]. [344]
C. Receipt of plea: The trial judge will not "receive" (i.e., accept) the plea until she has assured herself that certain requirements, designed to protect D, have been complied with. Thus the judge must be satisfied that: (1) D is competent to enter into the plea, and the plea is truly voluntary; (2) D understands the charge; and (3) D understands the consequences of the plea, such as the minimum and maximum possible sentences. [345]
1. Factual basis: Some states, and the federal system, also require that the judge not take the guilty plea unless the judge is convinced that there is a factual basis for the plea. Thus if D continues to protest his innocence, and says that he is pleading guilty only to avoid the risk that the judge or jury may disbelieve his truthful professions of innocence, the judge will normally not accept the guilty plea. In this scenario, it is constitutional for the trial judge to refuse to take the guilty plea -- there is no absolute constitutional right to have one's guilty plea accepted by the court. [North Carolina v. Alford]
D. Withdrawal of plea by defendant: Under some circumstances, D may have the right to withdraw his guilty plea. [346]
1. Before sentencing: Before sentencing has taken place, most jurisdictions give D a broad right to withdraw the plea.
2. After sentencing: But after sentencing, it is far harder for D to withdraw the plea. Courts normally don't let D get two bites of the apple (i.e., they don't let D plead guilty, see what sentence will be imposed, and then rescind the arrangement if he is disappointed).
a. Trial judge ignores recommendation: But in one situation courts usually do allow a post-sentencing withdrawal of the plea: where the prosecution agrees to recommend a certain sentence, and the trial judge ignores the recommendation and sentences more severely, most jurisdictions allow D to withdraw and go to trial (though it is probably not a violation of D's constitutional right for the court to refuse to allow withdrawal in this situation).
E. Rights waived by plea: Normally, a defendant who enters a guilty plea and undergoes sentencing is deemed to have waived any rights, including constitutional ones, that he could have asserted at trial. With rare exceptions, therefore, D may not appeal the pleaded-to conviction or the sentence under it. This is true even where D now asserts constitutional rights that were not recognized until after the plea was entered. [McMann v. Richardson] [346]
IV. RIGHT TO SPEEDY TRIAL
A. The right generally: The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy...trial." This right applies to both federal and state prosecutions. [347]
1. Factors: There is no bright-line rule setting forth exactly how speedy a trial must be. Instead, the Supreme Court uses a "balancing test," in which both the prosecution's and the defendant's conduct are weighed. There are four factors which courts are to consider in deciding whether the trial has been unreasonably delayed: (1) the length of the delay (with most delays of eight months or longer found "presumptively prejudicial"); (2) the reason for the delay (the more culpable the government's conduct regarding the delay, the better D's speedy trial claim); (3) whether D asserted the speedy trial right before a trial began (as opposed to an assertion of the right after the trial was conducted and D lost); and (4) what prejudice D has suffered by the delay (with the most weight given to any impairment of D's ability to defend himself, such as by the death or unavailability of witnesses).
B. Federal Speedy Trial Act: In federal prosecutions, speedy trial problems are covered by the Speedy Trial Act, which as a very general rule provides that the time between indictment and commencement of trial must normally be no more than 70 days (but which allows various "periods of delay" that do not count in the 70-day limit). [348]
V. PRE-TRIAL DISCOVERY
A. Discovery for the defense: The defense may be entitled to advance disclosure by the prosecution of evidence relevant to the case.
1. Prosecutor's constitutional duty to disclose: There is no general constitutional duty on the part of the prosecutor to disclose material evidence to the defense. But there is one constitutional rule: the prosecution must disclose to the defense exculpatory evidence within the prosecution's possession. [Brady v. Maryland] (A defense request for exculpatory material is called a "Brady request.") [350 - 352]
a. Good faith irrelevant: Even if the prosecution's failure to disclose exculpatory evidence is not motivated by a desire to hamper the defense, and is truly the result of negligence or even circumstances beyond the prosecution's control, this makes no difference. (But if the prosecution is unable to disclose exculpatory evidence because the evidence has been lost or destroyed, the Brady doctrine does not apply unless the defense shows bad faith on the part of the police. [Arizona v. Youngblood])
2. Practice: Apart from constitutional requirements, most states, and the federal system, have enacted elaborate statutory pre-trial disclosure schemes. For instance, nearly all states and the federal system require the prosecution upon request to give the defense copies of prior recorded statements by the defendant. Similarly, many states also require the prosecution to disclose to D any recorded statements made by a co-defendant, as well as copies of scientific tests, physical examinations, and a list of witnesses whom the prosecution intends to call at trial. (But the defense usually may not get ahold of police reports.) [352]
B. Discovery for the prosecution: Most states and the federal system give the prosecution some discovery rights. These are usually less broad than those given to the defense. For instance, most states, and the federal system, require D to give advance notice of his intent to raise an alibi defense. [353]
VI. THE TRIAL
A. The right to a "public" trial: The Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right to a...public trial." This right means that there must be some access by members of the public. Thus it would be a violation of D's public trial right for the trial to be held against his wishes in a closed judge's chambers, or in a prison. [354]
1. D does not have right to closed trial: D does not have the right to insist on a private trial -- the court may, without violating D's constitutional rights, order that the trial be conducted publicly over D's objection.
2. Partial closure: Occasionally, D's right to a public trial may be outweighed by a competing interest, on the part of the public or a witness, in having part of the trial closed. In general, the party (usually the prosecution) seeking to close part of a trial must show: (1) that there is a compelling state interest in favor of closure; (2) that the closure will be no broader than necessary to protect that state interest; and (3) that there are no reasonable alternatives to closing the proceeding. [Waller v. Georgia] [354]
Examples: If D is being tried for raping V, a minor, the court probably can order the trial closed during the testimony of V, to protect her interest in confidentiality; but it probably cannot close the entire trial -- the judge should instead consider ordering the parties not to refer to V by name. Similarly, if the case involves testimony by W, an undercover informant, it would probably be constitutional to close just the portion of the trial involving W's testimony, but probably not to close the entire trial.
B. D's right to be present: The defendant has a constitutional right to be present at his trial. This right derives from the Sixth Amendment's right of the accused "to be confronted with the witnesses against him." (However, this right can be lost by D's disruptive behavior which persists after a warning.) [355]
C. D's Confrontation Clause rights: The Sixth Amendment gives any criminal defendant "the right...to be confronted with the witnesses against him." This is the Confrontation Clause. It applies to the states as well as the federal government. The Confrontation Clause has two main components: (1) the right to compulsory process; and (2) the right to cross-examine hostile witnesses. [356 - 357]
1. Compulsory process: The compulsory-process branch of the Confrontation Clause means that D has the right to have the court issue a subpoena to compel the testimony of any witness who may have information that would be useful to the defense. [356]
a. Assistance by the prosecution: Sometimes, the compulsory-process right means that the prosecution must assist the defense in finding witnesses. Thus if the prosecution knows the whereabouts or identity of a witness who would be useful to the defense, the prosecution may be constitutionally compelled to disclose that information. [Roviaro v. U.S.] (But in the case of an undercover informant, D's Confrontation Clause right to learn the informer's identity may be outweighed by the interest of the state, or the informer, in confidentiality to protect ongoing investigations or the informer's safety.) [356]
2. Right of cross-examination: The Confrontation Clause puts limits on the government's ability to restrict D's right of cross-examination. (Example: A rule preventing D from cross-examining juvenile witnesses based upon their juvenile court records violates the Confrontation Clause. [Davis v. Alaska]) [356]
a. Limits on hearsay: Similarly, the Confrontation Clause places some limits on the state's right to use hearsay evidence against D. For instance, hearsay may not be admitted unless it was obtained under circumstances providing reasonable "indicia of reliability." [Ohio v. Roberts] (But hearsay admitted under long-standing common law exceptions to the hearsay rule, such as the dying declaration exception, will almost always be found to have sufficient "indicia of reliability.")
D. Defendant's right to remain silent: The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." [358]
1. Right not to take the stand: The privilege does not mean merely that D may refuse to answer questions asked of him by the prosecution. Instead, it means that D has the right to not even take the witness stand. (Most criminal defendants take advantage of this right.)
a. Waiver: But the privilege may be waived. A defendant who does take the witness stand has waived his privilege as to any matters within the fair scope of cross-examination. (Example: Once D takes the stand at all, he may be cross-examined about any prior convictions that shed light on his propensity to tell the truth, such as convictions for any crime involving dishonesty or false statement. See FRE 609(a).)
2. Comment by prosecution: The privilege against self-incrimination means that the prosecution may not comment on the fact that the defendant has declined to take the witness stand. [Griffin v. California] [359]
VII. DOUBLE JEOPARDY
A. The guarantee generally: The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This is the guarantee against "double jeopardy." The most classic application of the doctrine is to prevent D from being retried after he has been acquitted by a jury. But it occasionally applies in other contexts as well (e.g., if D's conviction is reversed on appeal on the grounds that the evidence at trial was insufficient to support a conviction, no reprosecution is allowed). [359]
1. Applicable to states: The double jeopardy guarantee applies to state as well as federal trials. [Benton v. Maryland] [359]
B. When jeopardy attaches: The protection against double jeopardy does not apply until jeopardy has "attached." [361]
1. Jury trial: In a case to be tried by a jury, jeopardy is deemed to "attach" when the jury has been impaneled and sworn, i.e., when the whole jury has been selected and taken the oath. [Crist v. Bretz]
2. Bench trial: If the case is to be tried by a judge sitting without a jury, jeopardy attaches when the first witness has been sworn.
C. Reprosecution after mistrial: If the trial begins and is then terminated by a mistrial, the prosecution is usually not barred from retrying the defendant. [327]
1. With D's consent: If the mistrial has been brought about by the request of, or the acquiescence of, the defendant, reprosecution is always allowed. This is true even though D's motion for a mistrial is required because of the prosecution's intentional misconduct.
2. Without D's consent: Even where D has not consented, the mistrial usually does not bar reprosecution.
a. Manifest necessity: For instance, if the court finds that the mistrial is required by "manifest necessity," reprosecution will be allowed. Most courts are quick to find the requisite necessity. (Example: If there has been a hung jury, or sickness results in there being too few jurors left on the panel, retrial is almost always allowed.)
D. Reprosecution after acquittal: The classic application of the Double Jeopardy Clause is to prevent reprosecution after the defendant has been acquitted. [362]
1. Acquittal by jury: Where the case has been tried to a jury and the jury has come in with a verdict of not guilty, the clause always prevents D from being retried. This is true even though the acquittal was brought about by the admission of what should have been inadmissible evidence, and even if it was brought about by what can later be proved to have been perjured testimony offered by the defense. For this reason, the prosecution is never permitted to appeal a jury acquittal.
2. Acquittal by judge: Similarly, an acquittal by the judge sitting alone is final, and cannot be appealed.
E. Reprosecution after conviction: Occasionally, the fact that D has been convicted may bar a later prosecution. [362 - 363]
1. Verdict set aside on appeal: If D is convicted at trial, and then gets the verdict set aside on appeal, the double jeopardy rule usually does not bar a retrial. (Example: D is convicted based on the fruits of a search and seizure which, D contends, violated the Fourth Amendment. The appellate court agrees. The Double Jeopardy Clause does not prevent the state from retrying D on the same charge.) [362]
a. Insufficiency of evidence: But there is one big exception: if the appellate court reverses because the evidence at trial was insufficient to support a conviction (i.e., no reasonable jury could have found D guilty on the evidence presented), a reprosecution is not allowed.
2. Resentencing: Where D is convicted, then appeals and receives a new trial, the Double Jeopardy Clause places some limits on the length of imprisonment that may be imposed on the new conviction. [363]
a. Credit for time served: The Constitution requires that D be given credit for the time he served under the first charge before it was overturned. [North Carolina v. Pearce]
b. Longer sentence: On the other hand, the judge hearing the second trial is not prevented from giving D a longer sentence than was imposed following the first conviction. [North Carolina v. Pearce, supra.] (But if D in a death penalty case is sentenced to something less than death in the first trial, he may not be sentenced to death upon retrial.)
F. Reprosecution by a different sovereign: A conviction or acquittal by one jurisdiction does not bar a reprosecution by another jurisdiction. This is the so-called "dual sovereignty" doctrine. (Example: D, a police officer, is charged in a state trial with aggravated assault upon X, a suspect in custody. D is acquitted. D is then charged with the federal crime of violating X's civil rights; all of the facts making up this offense are the same as they were in the earlier, state, trial. The federal prosecution does not violate D's double jeopardy rights, because it is being brought by a different jurisdiction than brought the first case. The same would be true if the federal case came before the state case.) [363]
1. Non-constitutional limits: But many states have state-constitutional or statutory provisions protecting D against reprosecution after conviction by some other jurisdiction. Similarly, federal guidelines bar a federal trial where a comparable state prosecution has already occurred, unless an Assistant Attorney General has approved the reprosecution.
G. Overlapping offenses: Occasionally, two different offenses involve the same set of facts to such an extent that the two offenses are deemed the "same" for double jeopardy purposes. You probably need to worry about this "overlapping offenses" problem only where one charge is a lesser included offense of the other. [363 - 364]
1. Lesser included offense tried first: Suppose the lesser included offense is tried first. Here, whether the first trial results in an acquittal or conviction, the prosecution cannot bring a later prosecution for the greater offense. [Brown v. Ohio])
2. Lesser included offense tried second: Conversely, the Double Jeopardy Clause also bars prosecution for the lesser included crime after conviction of the greater one.
3. Unable to try both at once: But the rule barring serial prosecutions on the greater and lesser included offenses does not apply where the prosecution is unable to try both cases at once for reasons that are not the government's fault. (Example: If facts needed for proving the second crime had not yet been discovered at the time of the first trial, despite the prosecutor's due diligence, the second trial will not be barred.)