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CRIMINAL PROCEDURE OUTLINE
Chapter 1 - Basic Principles
I. A Criminal Case
Class Notes
parties in crim case: prosecutor (has alot of discretion) and defendant (citizen) crim laws come from statutes - legis branch prosecutor is in exec branch chief exec in MI is John Engler chief law enforcement officer in MI is Att Gen Granholm theoretically att gen has supervisory power, but seldom used need to know where crim pro comes from rules are drafted by committee, mi sup ct adopts them ct rules & proced are duty of ct sub crim law is duty of legis what are the limitations on the rules? Constitution (mi and fed) if mi constit adds more rights to us constit, that’s ok always know what ct case is from, whether ct is addressing constit, statute, or ct rule issue because not all us sup ct cases are applicable to states to get to ct of app from trial ct, D probably got convicted, appellant is almost always D. Know who appellant is. 3 ways to get to us sup ct:
seek review from state’s highest ct in crim case direct appeal habeaus corpus - constit right in us constit. Must exhaust state remedies to go to fed ct. Ex: Giddeon v Wainwright (att gen is D) - D needs to show the ct he has good reason to hold that person)
II. The Nature of the Procedural System and sources of procedural rules
Book Notes
III. Incorporation Doctrine and Prospective Decisionmaking
A. Incorporation
Book Notes
total incorp has not been adopted by Ct (ex: no grand jury req on state cts, 7th amend jury trial in civil cases not binding on states, bail clause of 8th amend) most of Bill of Rights have been incorp Duncan v LA (1968) - held the right to jury trial, guaranteed by 6th amend is binding on states. Look at whether the right is fundamental to determine if it will be incorporated. Ct determined that trial by jury is fundamental right.
Book Summary (p 16-17)
citizen cannot rely on dp if a specific bill of rights guarantee would provide same constit protection where specific bill of rights protection has trad reg an area of crim invest or prosec, but provides no prot in a particular case, it is very unlikely that citizen can rely on more gen dp guarantee indep prot under dp clause remains viable where govt activity has some purpose other than enforc of crim law indep prot under dp cl remains viable even in crim cases where no specific bill of rights guarantee has trad applied NOTE: if a state ct explicitly relies on state constit law to provide more prot to citizens than fed constit, state court’s decision on this matter cannot be reviewed by US SUP CT MI v Long (US SUP CT 1983) - state ct must place explicit reliance on state law in order to avoid US SUP CT review, otherwise it will be presumed that the state ct was construing fed constit
B. Retroactivity
Book Notes
when sup ct reviews actions of govt in crim case, the legal rule it makes applies to similar govt conduct arising after the date of the decision one rule ct always follows is to give the benefit of the new rule to the litigant who estab it, even though that constitutes retroactive application Teague v Lane (1989) - adopted Harlan view and held that new rules are gen inapplicable to habeas cases. Case announces new rule when it breaks new ground or imposes a new oblig on state or fed govt. Harlan view: new rules gen should not be applied retroactively to cases on collateral review, with 2 exceptions: 1) new rule should be applied retro if it places certain indiv conduct beyond law-making auth to proscribe; 2) should be applied if it req observance of those rules implicit to ordered liberty. The ct held unless they fall w/in one of those exceptions, new constit rules of crim pro will not be applicable to those cases which have become final before new rules are announced. After Teague, new rules are gen inapplicable to those whose convictions have been finalized. Finalization is defined as date when us sup ct has denied cert of d’s direct appeal OR when time to petition for cert runs out. When decision merely applies settled precedent, it is not a new rule, and is completely retroactive - rationale is that if a constit rule is not new, the state ct should have applied it correctly, and therefore failure to apply it is proper grounds for habeas relief.
Class Notes
purpose of crim law: deter potential wrongdoers/people at large rehabilitation retribution (only logical justif for death penalty) safety factor (get that person out of way) crim defense attorney worries about $ prosecutor thinks what is the appropriate result of this person, given all of the values inherent in crim law Review of Movie - importance of proced protections
1. Deputizing people - deputy sheriff did not have authority to do it
2. Judge did not get involved, said it was up to sheriff
3. Improper arrest: no probable cause, no warrant
4. No Miranda warnings - their stmts were coerced (inadmissible). Profiling involved (mexican guy, old guy not competent to testify)
5. No right to counsel, right to investigate
6. No right to jury, no secrecy in deliberation, no impartiality
7. Not allowed to present evid/witnesses, couldn’t confront their witnesses
8. Used letter against one in sentencing
Chapter 2 - Searches & Seizures of Persons and Things
I. Intro to 4th amendment
Book Notes
4th amend states: 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 person or things to be seized.
Class Notes
govt conducts “searches and seizures” through officers why do we have 4th amend? Because of bad British practices (taxation w/out rep, boston tea party, govt investigates) they were randomly going to people’s houses 4th amend comes into play when there’s an investigation it was estab as control on govt, protects right of the people US v Verdugo-Urquidez (1990) - held that 4th amend does not apply to a search of prop owned by a non-resident alien & located in a foreign country. He was not in US and that’s why 4th amend did not apply they arrested him in Mexico & brought him back. NOTE: there’s no exclusionary rule for kidnapping (Eichmann) Gen Rule: search w/out warrant is unreasonable Requirements for exclusionary rule to come into play:
need state action, officer/govt must do searching & seizing. Ask: who’s doing the search? Warrant must be based on probable cause. Need search or seizure/arrest. What do you need here?
A. Reasonable expectation of privacy
ex: glove compartment in car= yes, if there’s probable cause to find what cop is searching for pulled over for speeding ticket = no looking for weed = yes
B. One that society is willing to accept
Remedy for unreasonable search is suppress evidence. You also have civil remedy. You could define it as a crime. Component of damages for civil remedy is a problem (maybe could get loss of income, etc.... admin aspect
II. Threshold Req for 4th amend prot: what is a search, seizure?
A. Reasonable Expectation Test
Book Notes
Katz v US (1967) - phonebooth case. Govt activity in electronic listening & recording to Ds words violated privacy in booth, and constituted search & seizure w/in 4th amend. This restraint was imposed by agents themselves, not by judicial officer. They needed to get permission. This kind of electric surveillance is subject to 4th amend conditions. 2-Prong test from Katz: 1) govt conduct must transgress a citizen’s subjective manifestation of privacy interest; and 2) privacy interest invaded must be one that society is prepared to accept as legit. Ct has held many times that there is no legit privacy interest in illegal activity
Class Notes
Katz expanded right of privacy. Before Katz, you had to have prop interest in phonebooth, you have reas expect of privacy (old law req some invasion, like trespass) ex: MI Constitution Art I, sec II - look up curtilage. Is garage part of it? Is it attached? Yes. Separate? Remember MI has to interpret 4th amend according to fed law, which states the min req. MI v Sitts if people have access to it, you have less expect of privacy
Book Notes
Open fields - no legit expect of privacy (only curtilage is protected), curtilage defined by whether an indiv may expect an area immed adjacent to home will remain private) curtilage - is protected by 4th amend, but quest on how far it extends. US v Dunn (1987) - ct held that a barn located approx 50 yards from the fence surrounding a residence on almost 200 acres of prop was outside curtilage. 4 factors for curtilage questions:
proximity of area claimed to be curtilage to the home whether area is included w/in an enclosure surrounding home nature of uses to which area is put steps taken by resident to protect area from observation by people passing by.
Acess by members of Public
Pen registers - device records #s called by D on his home phone. Ct held use of pen register did not constitute a search, so no warrant was required Electronic pagers - 6th cir Meriwether, ct held: no reas expect of privacy when d transmitted his # the pager. Ct said d assumed risk that anyone from public who had the pager would get message cordlesss phone - trash - Greenwood, ct held: officer inspection of trash, in front of Ds house did not constitute search, so cop did not need warrant or probable cause. Ct said public had access to trash, so no reas expect of privacy aerial surveillance - ct held 4th amend is not violated by aerial observation w/out a warrant from an altitude of 1000 ft of a fenced-in backyard w/in curtilage of home. Also held there was public access, no reas expect of privacy. Ordinary overflights - Riley: ct held surveillance of backyard from helicopter hovering at 400 ft was not a search (public access again)
Investigation which can only uncover illegal activity
canine sniffs - Place - Ct held canine sniff of closed luggage for drugs was not a search. If trained dog alerts to luggage, officers cannot open luggage immediately. If dog positively alerts, this legally obtained info can be brought to magistrate to attempt getting warrant (it’s up to magistrate from here) thermal detection devices -
Sensory Enhancement Devices
electronic beepers - tracking public mvmt - Knotts - ct held this was ok jails, prison cells, convicts - no constit prot expect of privacy public schools & pub employees - TLO - ct declined to equate schools w/prisons. NOTE: even if ct finds reas expect of privacy. Then the official intrusion is reviewed for its reasonableness. Therefore, in TLO ct held that the school official’s inspection of a student’s handbag was a search, but it was reas because official had reas suspicion that student had cigarettes in her bag.
Class Notes
electronic devices - usually not a search split now over heating devices what about encryption? Issue in cong, do computer manuf have to provide back door for govt... canine sniff - not a search, anything that enhances senses is not a search govt has alot of power here and they use it generally, beepers can’t be placed in someone’s house unless you have warrant acc’d to 2nd cir you can’t use telescope to peer into someone’s bedroom window
III. Tension between reasonableness and warrant clauses
A. Importance of the warrant clause generally
Book Notes
B. Reason for the warrant requirement
Johnson v US (1948)
cops smelled opium in hotel lobby, knocked on door & introd themselves, said they smelled opium, D denied it, they searched room and found it it was unlawful, w/out warrant to arrest D and search here living quarters. Reason for 4th amend is so that inferences are drawn by “neutral and detached magistrate” instead of cop. They could have got warrant. Because no warrant was sought, search was unreasonable.
Class Notes
cops smell opium in hotel lobby no voluntary consent, but they had probable cause she was in the equivalent of her home (recog in MI) important to get warrant from neutral & detached magistrate, prevents overzealous cops from infringing on someone’s rights
IV. Obtaining a search warrant - constit prerequisites
A. Demonstrating Probable Cause (4th amend req prob cause for warrant)
1. Creation of 2-pronged test
Spinelli v US (1969)
ct cited Aguilar test: 1) need to cite underlying circumstances necessary to enable magistrate to make judgment; 2) need to support informant info as credible ct held: informant tip, even when corroborated to extent here, was not sufficient for probable cause (cop did not offer reason why informant tip was credible or how informant knew Spinelli or that he was running bookmaking operation) what is req to show prob cause for warrant? Some reliability
Book Notes
Majority in Spinelli accepts following propositions: cop is presumed to be honest when making affidavit, thus cop credibility never questioned source of cop’s info is questioned if cop says he has 1st hand knowledge of facts for probable cause, only quest is whether those meet threshold. Magistrate listens and makes judgment of sufficiency if cop is relying on someone else for all or part of info, then you have to make 3 determinations: who is the source of the info, and is source reliable? Reliability is 1st prong of spinelli what are bases of source’s knowledge? Credible info is 2nd prong assuming source is reliable, are facts alone or together w/other facts sufficient to satisfy prob cause? If source is not reliable, cop may be able to show reliability by corroborating details provided by informant if basis of info is unclear from informant, but it seems that they could not have known info but for personal observation, they might be viewed as credible if informant info falls short, cops can supplement it magistrate should look at everything and see if govt has shown probability of crim activity
Class Notes
Spinelli dealt w/informant’s tip, not an ordinary citizen. W/ord citizen, there’s no reliability challenge for arrest/search to be legal you need: probable cause warrant before you even get to that, you need a search/arrest and some govt action affidavit of fbi agent to go to neutral & detached magistrate, to make determination of prob cause one kind of info, cop provides from own senses, but from informant, by def it’s hearsay what could agent do to make this affidavit constit valid? What other kind of info to make hearsay more reliable? Corroborated info from cop needs to show how he knows informant is reliable (like past things the informant was correct on, stmt against his interest, excited utterances) THINK OF EXCEPTIONS TO HEARSAY RULE, ADMISSIONS spinelli 2-pronged test: credibility, set forth underlying circum (reliability) fortas dissent wanted to have more common sense approach
2. Rejection of a rigid 2 prong test
IL v Gates (1983) NEW RULE
ct adopts totality of circumstances test (balancing test, more fluid) ct said don’t need to satisfy both prongs of spinelli a deficiency in one may make up for the other only probability of crim act is needed for prob cause ct abandons spinelli test ct says it’s duty of reviewing ct to ensure that magistrate had a “sub basis for concluding p.c. existed”
Class Notes
keep reality in back of your mind problem is you have hard evid here, if you suppress it, crim goes free anonymous tip case remember overall purpose of 4th amend gates makes it easier for police, cts are reluctant to say search/cops are bad Insufficient corroboration: US v Leake (6th cir 1993) - controls in MI. Ct found insuff corrob after cops found 300 pounds of weed in guy’s basement. Got call from anonymous tip, but it wasn’t enough. Gates Test Applied: MA v Upton (1984) - Ct reversed Ma sup ct, said there was enough corrob. Ma ct says their constit provides more prot than Gates (they use 2-prong spinelli test). Ct says hey look, we rejected that test. On remand, Ma state sup ct decided to follow spinnelli anyway. If you were in fed ct in Mass, fed ct would have to follow Gates hard question: how do you determine what is p.c.? most cops don’t know constit law on 4th amend. Cops have to decide these questions.
3. Quantity of info req for probable cause
Prady-Binett (DC Cir 1993) - small rectangular block wrapped in duct tape - cop saw it - cop thought it had drugs - ct concluded that based on totality of circum, there was a fair prob that the block contained drugs prob cause applies to searches and arrrests. Prob cause is determined by whether: there’s a fair prob that area or object to be searched contains evid of crime. Prob cause to arrest is determined by whether there’s a fair prob to believe that the person arrested has committed crime. These 2 merge sometiems: ex: in Prady, if there was prob cause to believe block had drugs, then there was also prob cause to arrest collective knowledge - if officer A demonstrates to magistrate prob cause to arrest D, any other cop can make arrest, don’t need to have indep knowledge. Same rules applies in warrantless search cases staleness of info - not good, but watch out for continuing crim operation law office search - no extra prot apply if there is prob cause to believe lawyer is engaged in crim activity reasonable particularity - 4th amend req that warrant must set forth location of place to be searched w/reas particularity Winston v Lee (US 1985) - ct held unreas, a med proced that removed bullet from D
4. Anticipatory Warrant (not a hot issue)
5. Executing the Warrant (what to tell cop if he never executed warrant)
I should read affidavit & warrant, to see if there’s prob cause ask: what are you looking for? Limitations: address (could limit to house or garage, can only go to the one in the warrant) time scope of contents (what you’re searching for) ex: drugs, you can look in small places
Class Notes
Suppression hearing - hearing to enforce the exclusionary rule in MI, is it better to object to search of prelim exam or pre-trial motion? Practice pointer - problem with motion is that it gets deferred to day of trial at suppression hearing, govt has burden of proof to show search was legal knock and announce rule Stevens - WI ct announced blanket rule that cops who have warrant seeking evid of drug dealing can always enter w/out announcing their presence (because drugs can be disposed of quickly) however, this case was overruled knock & announce - biggest propents are cops. Last 6 mo there’s a split on what happens if cop doesn’t knock & announce. Us sup ct says you don’t have to suppress evid if cops don’t do it. 6th cir says yes you do have to suppress can’t challenge 4th amend issue on habeaus corpus (Stone v Powell) Destruction - p would have to show search was overly destructive (ex; tearing out walls to look for alcohol) Unnecessarily intrusive searches - Hummel (8th cir1994) - birthing clinic case When is search completed? When it’s reasonable. They don’t have to stop w/little chunk they find, they can look more where they’d be reasonably hidden cts have held that you don’t have to show warrant before search BUT - you don’t have to open door if they don’t show it, it’s reas for you to say no why do we need neutral & detached magistrate? Protect indiv from govt magistrate cannot be part of law enforcement branch legal training: Shadwick (US 1972) - generally, you can have legally non-trained magistrate for minor offenses - but not for major cases what if magistrate gets $ for issuing warrants? No, can’t do it, not neutral & detached anymore always remember purpose of 4th amend - protect citizen warrant req reason req neutral & det magistrate talking primarily about search warrants
V. To apply or not apply the Warrant Clause
**In general, search/seizure is presumptively unreas if there’s no warrant based on prob cause
A. Arrests in public and in the home
1. Standards for warrantless searches
cop can arrest w/out warrant if he has reas cause to believe person has committed: felony misdemeanor - if cop has reas cause to believe such a person must be arrested immed OR may cause injury to himself or others OR misd is committed in front of cop ALWAYS NEED PROBABLE CAUSE
2. The constiti rule: arrests in public
Watson (US 1976) - cop got call from informant saying D had a stolen credit card, cop knew informant, informant set up D - cops arrested D. Cop asked D if he could search car, D said go ahead, cop found more stuff. Ct held D’s arrest valid, under statute and c.law rule. BOTTOM LINE: if cop has prob cause to believe person has comm felony, cop can arrest suspect in public place w/out a warrant Use of excessive force when making arrest TN v Garner (US 1985) - ct held under 4th amend, deadly force may not be used to prevent escape of felon unless it is necessary to prevent escape & officer has prob cause to believe D poses signif threat of death or serious physical injury to cop or others Graham (US 1989) - ct held all claims of excessive force in making arrest are governed by 4th amend stand of reas McLaughlin (US 1991) - Gerstein, ct held 4th amend req prompt jud determination of prob cause as prereq to pretrial detention following a warrantless arrest. Here, ct held a juris that provides jud determinations w/in 48 hours of arrest will, as gen rule, comply w/promptness req of Gerstein. However, if D does not get prob cause determination w/in that time, burden shifts to govt to demonstrate existence of a bona fide emergency or other extraordinary circum.
3. Arrests in the home
Payton (US 1980) - home is very private, therefore ct held cops need warrant to enter unless there are exigent circum Hotels and Motels Morales (8th cir 1984) - this is considered home during rental period, and it has to be lawfully possessed (so cop needs warrant) arrests in home of 3rd party Steagald (US 1981) - search warrant must be obtained to look for suspect in home of 3rd party, absent exigent circum. Note: arrest warrant only req magistrate’s determination that there is prob cause to arrest person, not specific as to location search warrant would req magistrate to determine there is prob cause to believe suspect is in home of 3rd party after this case, cop must know where suspect lives. If D lives there, cop needs arrest warrant. If D is just a visitor, need search warrant overnight guest - need arrest warrant, Olson material witness cops have power to arrest & detain mat’l witness to crime, if it is shown that it is impractiable to get his presence by subpoena
Class Notes
when is someone arrested? When they are detained against their will what do cops need to arrest someone? Probable cause difference: arrest warrant does not say where person is cops don’t always need warrant to arrest someone (ex; when they witness misd, felony, or immed danger to cop) ex: I say to cop, that guy robbed me a week ago, go arrest him, can he? In public - he can do it w/out warrant. In home - needs warrant no reas expectation of privacy in your car (windows). If there’s prob cause to think you comm crime, cop can usually arrest you in car w/out warrant Watson - don’t need warrant to arrest in pub place. Dissent says we’re giving stricter stand on search than arrest. Ex: guy has suitcase, cop thinks it has drugs in it, can’t search w/out warrant excessive force is determined by jury, really a civil question arrest has to be proportionate to activity of person what happens after someone is arrested? Booked & [processed may question them McClaughlin, 48 hrs max to arraign, in MI it’s 24 hours. Steps for arraignment on warrant: how can you have arraignment on warrant w/warrantless arrest? Get warrant after arrest, go to prosec or magistrate to determine prob cause can inform D of charges also, have how D will plea, most juris have D stand mute (gen not guilty) bond determination (in fed ct maybe detention), gen bond is set determine whether attorney is going to be there (assigned) McClaughlin - 48 hour rule to be brought before magistrate. In MI, it’s as close to 24 hours as possible. What if person is detained longer? Burden shifts to govt. What’s remedy? Try habeaus corpus, show cause hearing look for reas expect of privacy if you’re living in someone else’s house, they need warrant to arrest you if you’re visiting someone, they have prob cause, arrest warrant would have to state person was in that house, 3rd party concern remember what an arrest is, keep in mind def of arrest
B. Stop and Frisk
Terry (US 1968) - D was convicted of carrying concealed weapon. Ct said - where cop sees unusual conduct which leads to reas concl, in light of his experience, that crim act may be afoot & persons may be armed & dangerous, in course of investig, he identifies himself & makes reas inquiries, he is entitled to do stop & frisk. First, decide if & when cop seized & searched ....Whenever cop accosts indiv & restrains his freedom to walk away, he’s seized that person. 4th amend comes into play even when there’s no full blown search Second - was it reas for officer to interfere w/D’s personal security when he did? Dual inquiry: was officer’s action justified at its inception AND whether it was reas related in scope to circum which justif interf?
Must look at the govt interest, good faith not enough
Bottom line: ct permitted stops & frisks on less than probable cause, it also invoked the reas clause over the warrant cl as the standard Adams v Williams (US 1972) - cop got tip from informant that D had gun and drugs, pulled guy over, and w/out seeing gun, just reached in and took gun from D’s waist, and arrested him. Ct held search reasonable. Penn v Mimms (US 1977) - BRIGHT LINE RULE. Cops saw D driving car w/expired plate. They pulled him over for traffic violation, they ordered him out of the car, saw a bulge in his jacket, cop thought it was a weapon, frisked him and found gun. Ct held cop acted properly under Terry, therefore the gun was properly admitted at trial. CT HELD THAT COPS, IN THE COURSE OF A LEGAL STOP OF A CAR, HAVE AN AUTOMATIC RIGHT UNDER TERRY TO ORDER THE DRIVER OUT OF THE VEHICLE. Biggest concern is safety of cops. NY v Class (US 1986) - D was stopped for traffic violation. Cops looked in windshield of car to get car’s VIN # - but the number was covered by papers on the dashboard. One cop entered car to move the papers away & found a gun, which was admitted against D. Ct relied on Mimms and said cop acted reasonably. Ct held: TO OBSERVE A VIN # GENERALLY VISIBLE FROM OUTSIDE A CAR, A COP MAY REACH INTO THE PASSENGER COMPARTMENT OF CAR TO MOVE PAPERS COVERING THE VIN AFTER ITS DRIVER HAS BEEN STOPPED FOR TRAFFIC VIOLATION AND EXITED THE CAR. Michigan v Summers (US 1981) - ct held cops with search warrant for a home can req occupants of home, even if leaving when cops arrive, to stay while search warrant is executed. (To prevent flight, and destruction of evid) Mendenhall (US 1980) - “Free to leave test” D was in airport, agents approached her requested....she consented to strip search, they found drugs. Ct (Stewart) said a person is seized under 4th amend if a reas person would have believed that he was not free to leave (this test did not command majority of ct) FL v Royer (US 1983) - plurality applied “free to leave test” guy was at airport, matched drug courier profile, was approached by agents, went along with them, they took his tickets and luggage, found drugs. Ct summarized law on “stops”: w/out warrant to search D’s luggage and in the absence of prob cause or exigent circum, validity of the search depended on D’s purported consent where validity of search rests on consent, state has burden of proving that consent was obtained and that it was freely and vol given cops do not violate 4th amend by asking people quest on the street or other public places - but the person approached does not have to answer quest - person may not be detained even momentarily for refusing w/out reas grounds - and refusal to listen or answer does not furnish those grounds
here, agents took D’s driver license, tickets, and did not tell him he could depart - he was seized under 4th amend.
INS v Delgado (US 1984) - majority of ct adopted Mendenhall test here. Ct found that INS did not seize workers when they conducted factory surveys to find illegal aliens (even though there were guards at the exits) FL v Bostick (US 1991) - bus sweeps are ok Brower (US 1989) cops set up roadblock w/intent to stop suspect, he crashed into it and ided. Ct said D was seized under 4th amend Hodari (US 1991) - cop activity preceding a seizure is not governed by 4th amend, person who fails to submit to a non-physical showing of auth is not prot by 4th amend
Class Notes
Terry was written by liberal Warren ct, it’s a stop & frisk case) cops don’t have to have any suspicion to ask name def of arrest - detaining suspect against his will short detention - allows frisking - Why? For immediate safety of cops. See how this limited exception to prob cause was supposed to only protect officer & do pat down has been expanded dissent said nothing in constit allows this every search & seizure case is fact intensive - always answer quest w/analysis of facts. Ex: what if: they find prob cause, reas cause...) DO THIS ON EXAM - explain majority & minority rule factor in all these cases - place that search is happening, high crime area is emphasized by ct, looks like you have less expect of privacy there if there’s a high crime area, informant, some corroboration, that looks like enough for Rehnquist ct Mimms - ct expanded Terry - if cop stops you for traffic violation, all they need is reas suspicion under Terry, then the cop can order person out of car Mendenhall - not binding precedent, profile case., free to leave test
govt has to prove consent in evid hearing (they assert facts, they prove them) airport searches/arrests - have to be based on totality of circum, same for every search/arrest Bostick - whether reas person, who is innocent, would feel free to leave (O’Connor). Ct held this was not an arrest, therefore consent given after is OK ct says cops are not req to tell you that you can refuse consent, because nobody would consent, low view of 4th amend Inyo illustrates there must be intent to seize, that will = seizure Hodari is the tag game, test is complete when suspect submits to arrest
1. Grounds for a stop - reasonable suspicion
2-prong test for ct: ct must investigate source of info upon which reas susp is based AND ct must evaluate whether info creates sufficient cause to justify stop Al v White (US 1990) - ct held an anonymous tip which was significantly corroborated provided reas susp for a stop, applied Gates test Cortez (US 1981) - test for seeing whether reas susp exists: look at totality of circum. Based on that picture, cops must have a particularized & objective basis for suspecting person of crim activity. Particularized susp has to elements, both req to make stop permissible: must be based on all circum, data, pattersn of behavior and this must raise reas susp that person stopped is engaged in wrongdoing Remember, in Terry, ct said stop was less instrusive than arrest, so it could be conducted by less proof than prob cause req for arrest Ornelas-Ledesma (7th cir 1994) - NADDIS hits, old car, ct found stop was supported by reas susp relevance of race as factor profiles - admin tool for cops (ex are source city, use of alias, having lots of cash, etc)
2. Limited searches for police protection under Terry’
MN v Dickerson (US 1993) - frisk cannot be used to search for evid. Ct said Terry frisks are only justified for protective purposes - not for search of evid. Facts: cop lawfully stopped guy, did patdown, felt small object in his pocket, knew it wasn’t a weapon, but pulled it out of his pocket anyway. Ct said cop exceeded his power under Terry MI v Long (US 1983) - ct held Terry is not restricted to prot frisks of a person and also extends to protective exam of areas, ct upheld exam of passenger compartment MD v Buie (US 1990) - protective sweeps are ok w/ reas susp (quick and limited search of a premises, incident to arrest & conducted to protect safety of cops). Here cops entered residence to arrest D detention of prop under Terry - can happen w/reas susp. Can have depriv of liberty & prop interest AZ v Hicks (US 1987) - cops lawfully entered premises from which weapon had been fired & noticed 2 sets of expensive stereo equip. Suspecting they were stolen, one cop moved the radio to look at serial #. Ct said prob cause was req for this search (govt argued it was just a cursory inspection)
Class Notes
as suspicion rises, intrusion rises the more resistance to an arrest, the more force can be used Note: at the least, cops show mere presence, show of authority ex: it’s not reas for cop to use deadly force, like in a roadstop, unless cop is in danger or other people are what kind of suspicion do you need for Terry stop? Reasonable, articuable, but less than prob cause (so you could have prob cause for Terry stop too) Terry stop is just a stop to investigate, as opposed to a full arrest (where liberty is taken away) to send someone to prison, by def, you need prob cause to arrest, reas susp diff between prison & jail Note: arrest is a depriv of liberty (so you don’t actually have to be hauled to jail) Ornealas case - attempt to quantify prob cause req what about race of suspect? It can be relevant w/other factors, but it shouldn’t be determinative. Profiling is also used in traffic stops what’s the purpose of frisk? To protect officer Dickerson - ct said cop overstepped his bounds because he had reas articuable susp, but he went beyond that, ct thought he was on fishing expedition profiles are not necessarily bad, it doesn’t taint whole thing, you have to look at info cop used to move people for short time, need less than prob cause, but more than articuable susp. Ex of mvmts - move them to back of car, out of car, to diff parts of airport. Police cannot do Dragnet Arrest - arrest everyone in neighborhood because crime happened there - you need prob cause to take them to police headquarters on when you interfere w/their freedom/liberty how long can Terry stop last? Short time, fairly limited for arrest & seizure of prop, test is the same KNOW DICKERSON RULE under Terry, can’t move things, can’t search for evid when basis of Terry is prot of cop
C. Search Incident to Arrest - The Arrest Power Rule
Chimel v CA (spatial limitations US 1969) - 3 cops went to D’s house w/arrest warrant for burglary of coin shop. Wife was home, let them in, they waited for D, asked to search he said NO, but they told him they could search anyway because it was a lawful arrest, but they didn’t have search warrant, they searched whole house. Rule: cops can search arrestee and area immed w/in his control (close enough where D could grab weapon). Case by case approach WA v Chrisman (post-arrest mvmt US 1982) - ct said every arrest is presumed to be dangersous (stupid kid told cop come to my dorm room) Butler (10th cir 1992) - cops went to D’s trailer w/arrest warrant, ground had glass, they noticed D wasn’t wearing shoes, they told him to get shoes on, they followed him in, and found illegal weapons. Ct relied on Chrisman, said cops acted properly. NOTE - ct req a showing of exigency on facts of each case, fact that person has been arrested is not dispositive of whether there’s a risk of destruction of evid or harm to cops or public that would excuse warrant req search can precede arrest but it cannot be used to provide prob cause to make arrest Chambers v Maroney (US 1970) - cops searched car that was impouned and brought to cop station after arrest of its occupants. Ct held this search could not be justified as incident to arrest, reasons for search incident to arrest no longer remain US v Robinson (US 1973) - search of person incident to arrest - cops thought D was driving w/revoked license. D stopped, cop ordered all 3 out of car, cop did search, found heroin - ct found this to be a good search. Ct said standard for search incident to arrest are not governed by stricter Terry standards. Bottom line: ct said in case of lawful custodial arrest a full search of the person is not only an exception to warrant req but also a reas search under 4th amend. Bright line test NY v Belton (arrest power rule applied to cars US 1981) - cop pulled car over for speeding, smelled weed, put them under arrest for that, cop then searched the passenger compartment of car, saw black jacket on floor, searched that and found coke. Ct held: where cop has made lawful custodial arrest of occupant of car, he may as incident to arrest, search the passenger compartment of that car. Bright line rule 2 bright line rules from this case - a passenger compartment is always w/in the arrestee’s grab area AND containers in the arrestee’s grab area can automatically be opened
D. Pretextual stops and arrests
E. Plain view and Plain touch seizures
doc applies to searches w/warrants or another exception to warrant req Horton v CA (US 1990) - advertence is not necessary condition of plain view seizure AZ v Hicks (US 1987) - ct held prob cause is necessary to justify a search that precedes a plain view seizure after Hicks, cop must have prob cause to seize an item in plain view during the course of illegal activity - and prob cause must be readily apparent, w/out necessity of further search Dickerson - plain touch doctrine - ct said plain touch is ok, but cop here exceeded his authority. MN Sup ct rejected plain touch doc
F. Cars and other Movable objects
automobile exception - doc holds that cops may search a car w/out a warrant, as long as they have prob cause to believe it contains evid of crim activity Carroll v US (1921) - bootlegging case, Detroit - Ontario. Ct said warrant could not have been req here for cops to search car because of mobility of vehicle reasons for automobile exception: mobility and less expect of privacy Motor homes - treated like car CA v Acevedo (US 1991) - ct said Carroll governs all car searches. Cops may search car & containers in it where they have prob cause to believe contraband or evid is in there
Class Notes
Chimel is not applied to cars, too many quest to ask about what’s in immed vicinity. Cops could look in drawers for coins prob cause + warrant = ok (norm) prob cause + arrest in house = ok but ct put geographic restriction on this (whatever person can reach, w/in immed reach) reason: officer safety, destruction of evid an arrest w/prob cause on street is ok w/out arrest warrant how do you determine geo area? Totality of circum, look at facts. Relatively limited area, but not necessarily insignificant this is not a huge hardship on cops, they can get warrant afterward whole purpose for search incident to arrest - protection & preserve evid prob cause + emergency = Ok, overrides warrant Chambers - don’t cite often. Cops searched his car after arrest, ct said it was not at same time or almost contemp w/arrest prob cause + car = ok, no warrant Robinson - 2 rationales Belton - lawful arrest in car, no geo limitation. But be careful w/this, remember reason behind this rule: car is mobile. It says you can have search of compartment of car because of mobility, prot - this is somewhat of a fiction, so some cts still say you need some prob cause of evid of crime. Diff views on how much you can search: 1) if cop pulls person over for violation, they can search anything, 2) you can just search area (compartment) if you have prob cause to look for what you’re looking for Horton - ct says when you have warrant, you can take anything in plain view. If you have right to be there, and you’re looking for gun, you can look for other stuff Hicks - cops were suspicious because poor person had expensive stereo. Ct said you can’t move anything to put it in plain view. Contrast this w/shuffling papers to get VIN. One is home, one is car - less expect of privacy
Dickerson - plain touch, heavy burden on govt split of authority on whether you can open package, envelope in someone’s pocket - unless you have prob cause generally, cop can’t say it felt like contraband w/mobility, you have reduced expect of privacy think about mobility as rationale
G. Exigent Circumstances
state must show that immed action was reasonably necessary to safeguard the cops or public or protect against loss of evid this exception merely excuses cop from having to get magistrate’s determination that prob cause exists - it does not permit a search in the absence of prob cause it applies to searches & arrests ex: in Payton v NY, an arrest warrant was req to arrest someone in his home. However, if exigent circum exist, an arrest warrant is excused. Same for searches of a container, premises, etc. Hot pursuit - will excuse arrest warrant and search warrant where search of an area must be conducted to find suspect (Warden v Hayden ?) a warrant is excused if delay in getting warrant would result in significant risk of harm to cop or public O’Brien v City of Grand Rapids (6th cir 1994) - cops went to seize D’s car, D was in doorway w/rifle. D went in his house, shut the door, he didn’t point gun at anyone and did not verbally threaten to use it. 6-Hour standoff, cop gave shoot-to-kill order, they rendered him quadriplegic. Ct said his 4th amend rights had been violated, but no damages, because in fed civil rights action, cops are entitled to qualified immunity. If evid will be destroyed in time it takes to get warrant, the warrant req is excused. Mincey v AZ (US 1978) - no murder scene exception to the warrant req, govt must make factual showing of exigent circum. Facts: mincey shot & killed cop, cops came in and searched everything, for 4 days. Minor offenses Can’t impermissibly create exigent circum. Determination of exigent circum is objective, based on totality of circum if cop can foresee an exigent circum would arise at a certain time, and have prob cause & sufficient time to get warrant before exigency occurs, then the opport to obtain a warrant precludes the later invocation of the exigent circum exception warrants can be obtained by phone, saves travel time if exigent circum do not exist to search a house or other premises, cops must obtain a search warrant MI v Tyler (US 1978) - intial investig uncovered evid of arson, several hours later, extensive warrantless searches were conducted, days later they were still searching. Ct said firefighters may enter a burning bldg, w/out a warrant to extinguish fire and for a reas time after, to invest fire. All searches were upheld except ones that occurred days later.
H. Admin Searches and other searches and seizures based on special needs
if search is supported by special needs beyond crim law enfor, then ct engages in balancing of interests under reasonableness clause to determine safeguards NY v Burger (US 1987) - car junkyard was searched w/out warrant, a NY stat was involved. This is a closely regulated industry, that has a reduced expect of privacy, so 4th amend has less rigor here. warrantless inspection, even in this closely reg business, will be reas if 3 criteria are met: sub govt interest that informs the reg scheme pursuant to which the inspection is made warrantless inspections must be necessary to further the reg scheme statute’s inspec program must provide a constit adequate sub for a warrant NJ v TLO (US 1985) - ct held that a warrantless search of a student’s purse was reas when the school admin had reas suspicion to believe that cigarettes were in student’s purse. Special need: state’s interest in maintaining discipline in schools Skinner (US 1989) - considered constit of drug testing public employ. Ct upheld program mandating drug tests for all railroad personnel involved in certain train accidents. (Drug testing is a search, implicates privacy interests). Ct upheld d.testing as reas. Here, there was record of drug abuse doesn’t matter if there’s no record of drug abuse, Von Raab, ct upheld it for customs officials Vernonia School Dist (US 1995) - random urine test of athletes. Ct found special needs here, decreased expect of privacy in public school, relative unobtrusiveness of search, this is reas and constit.
Class Notes
exigent circum take place of warrant remember: prob cause + warrant = norm, now we have another substitute. Prob cause + exigent circum = OK exigent requires immed action. Ex: drug case, destruction of evid so, when do you need warrrant in drug case? When there are no exigent circum, otherwise the exception destroys the rule cops can’t create exigent circum - Vale need an immed need to act O’Brien - cops came to get his car, which was in driveway, obviously not destroying evid here. Ct held this was not hot pursuit, he was not danger to himself or others, they needed to get warrant. But he didn’t get damages, qualif immunity (ex: of no exigent circum) After O’Brien, now cops are on notice not to do this or they will pay damages Mincey - homicide det came in after (that was the problem) - no threat of destruction of evid Phones - cordless phones, are they prot by expect of privacy? Cong enacted law that gave some prot to cordless & reg phones conflict between warrant & reas clauses primary purpose of govt - to protect public so what does govt have to do to inspect your house? Fire code reg, if you want certif of occupancy, have to let them inspect govt needs legis scheme Griffin - recognizes, probation officer can search house for reas susp Burger, very important case - ct recognized commercial business has expect of privacy, ct said it was closely reg because of lots of chance of stolen goods admin search - needs less than prob cause drug testing - when is it allowed? Remember: you need search or seizure before 4th amend comes into play, need state action what kinds of jobs can govt req drug testing? Anything where safety is involved, airline pilots, train engineers more on car searches - supplement case Nolls v Iowa - D was issued a traffic citation. Ct said you can’t search entire car under this case. Ex: if cop stops person for bad tailight, cop can order person out of car, pat them down, but if that pat down & interaction does not result in prob cause, the fact of traffic citation by itself does not allow search of car but cops can ask for consent to search - Robinnette v OH - but ct says you can’t have vol consent, interaction is very coercive Vernonia - all about reasonableness clause, dissent argued it should be about warrant cl prof note: if teacher is high, you can show that, you have prob cause to get warrant these cases started w/random drug testing for train engineers, people who carry guns, all the way to student athletes in MI, random drug testing allowed in schools of teachers govt is trying to get more power to randomly drug test all kinds of people, to prevent drug abuse Morales (supplement) - gang colors case, US SUP CT Chandler - GA prov that says if you want to be Att Gen, you have to submit to drug test. Us sup ct said govt does not have right to do this
Roadblocks and suspicionless seizures
DE v Prouse (US 1979) - indiv stops. Ct held a cop could not, in absence of reas susp, stop a car & detain driver in order to check his license & registration. - too much discretion for cop - fear Martinez-Fuerte (US 1976) - permanent checkpoints. Ct said ok for suspicionless stop at parts removed from border, to check for illegal aliens MI Cops v Sitz (US 1990) - temp checkpoints, seizure case. Under this program, all drivers passing checkpoint would be stopped & briefly checked for signs of intox. Us sup ct said this was ok - but MI Sup ct relied on state constit and said roadblock was unconst, need some level of suspicion to enforce crim law ct has allowed search on less than prob cause in only 2 circum: 1) search for weapons and dangerous people, not evid, for purposes of self-prot (Terry); and 2) search for evid, where there are special needs beyond law enforc (Von Raab, Acton, ..) search for evid of crim activity by law enforc has to be under prob cause
Inventory Searches
unrelated to crim invest, cops just do this for cars and other things that are in their custody designed as “caretaking function” SD v Opperman (US 1976) - ct upheld warrrantless, suspicionless search of car impounded for parking violation (ct found 3 state interests behind inventory search: prot of cops from false prop claims, prot of prop interests of owner, and prot of cops and public from dangerous items) CO v Bertine (US 1987) - ct held cops could inventory contents of van, including a closed backpack, and nylon bag & other containers in it. Ct said these were reas reg. Fl v Wells
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