* Overview
For 1/12:
- Through Spinelli (113)
V Scope of 14th Amendment
* Palko v. Connecticut
State appealed due to error, and a new trial was ordered. Defendant appealed, was convicted again, and was sentenced to death.

At the time of Palko, Fifth Amendment would have prevented double jeopardy in a federal trial; however, Cardozo says that freedom from double jeopardy is not a fundamental requirement of justice and is not carried forward by the Fourteenth Amendment.

* Cardozo's Position: From __Powell__ (Scottsboro Boys), that did violate federal due process.
** Fundamental fairness must be violated.
** What made __Powell__ fundamentally unfair?
*** Ineffective counsel. Without effective counsel, the adversarial system breaks down, which is likely to lead to the wrong answer, which is not fundamentally fair.
* Adamson v. California
Convicted and sentenced to death, didn't testify, and California allowed defendant's failure to testify to be used against him.

* Black's Position: Total Incorporation. Everything prohibited by the Constitution is applied to the states by the Fourteenth Amendment.
* Frankfurter's Position: Only those things required by **fundamental fairness** need be protected by the Fourteenth Amendment.
* Murphy's Position: Even beyond Black's position. Wouldn't limit due process of the states just to the Bill of Rights. "Bill of Rights Plus"
* Rochon v. California
Stomach-pumping case. A graphic example of the limits of the state power.

Frankfurter: "Shocked the conscience"

References __Irvine v. California__
* Police installed listening device in bedroom and listened for a month.
* Court said this was not shocking to their consciences. Reasoning was that it was not the same, because they didn't actually touch anyone.
* Duncan v. Louisiana
Defendant denied jury trial. Louisiana only allowed jury trials for hard labor or death (essentially all felonies.)

* White's Position: Selective Incorporation.
** By the time we're at Duncan, we've already incorporated a whole bunch of things. So, we've gotten pretty close to Black.

* Harlan's Position: Taken up the Frankfurter train of thought.

What does it mean to have a jury trial? How would we figure that out post-__Duncan__?

Louisiana's arguments:
* Forcing a requirement for a jury trial would diminish the faith in non-jury trials
* Even if jury trials must be allowed, defendant was only sentenced to 60 days.
** Still, possibility was up to 2 years.

TODO: Review footnote b on p. 54. What are the risks of letting the 6th Amendment apply without forcing the federal baggage to it?
* Justices Black v. Frankfurter
Each claims to champion states' rights.

* Black: I make things predictable
** State can't know until after the fact if what they did was fundamentally fair.
* Frankfurter: I let the states do what they want, and they're only impinged when they violated fundamental fairness.
V Arrest, Search, and Seizure
Fourth Amendment applied against the states in Wolf v. ...

Many things the police do doesn't constitute a "search and seizure."


What limits does the Fourth Amendment place on the activities of the police to pursue criminals?

If the actions of the police are not regulated by the Fourth Amendment, the police can do them whenever they want.
* Court moved away from its focus on property rights (used to have to show a trespass)

So, we're looking for:
* expectation of privacy
* that expectation is reasonable

Why insist on warrants in advance?
* review by third-party (check-and-balance)
* after-the-event judgments with the benefit of hindsight

From Katz, the issue of a warrant modifies what's reasonable.


The Fourth Amendment implicates both privacy and possession.
* see footnote a., pg. 83 for Place and Soldal.
V Protected Areas and Interests
* Katz v. United States
Defendant was convicted of transmitting wagering information from Los Angeles to Miami and Boston. The police had been bugging the public phone booth used by the defendant to make his phone calls.

Government's arguments:
* No physical invasion. Outside of the phone booth.
** Spikes for audio bugs had been considered physical invasions.
* Defendant visible through the glass walls.
* Government had reason to believe that he was a gambler; he was targeted. They only listened when he was gambling. Cops could have easily gotten a warrant.

Court responds:
* Yes, you could have gotten a warrant, and you should have.

Two-pronged test:
# person has manifested **actual (subjective) expectation of privacy**
# expection is one that society is prepared to recognize as **reasonable**

The government argues that sure, there was a search and seizure, but it was not unreasonable.
* they had reason to believe he was gambling
* they tailored their search just to the criminal goals they were pursuing

Black tried to bring things back to its property roots in his dissent, basically arguing that there is no such privacy protection, beyond the privacy that flows from the protections of the Fourth Amendment.

If we want to modernize and maintain the same relationship with the government we had before phones, the Court's felt that we had to expand,
* California v. Greenwood
Police suspected the defendant of drug trafficking, arranged with the garbageman do deliver the trash, found evidence of trafficking, and used that as evidence to get an arrest warrant.

__Procedural Posture__:
* Superior Court excluded trash bags, as police never would have been able to obtain search warrant for lack of probably cause.
* Court of Appeal affirmed.
* CA Supremes denied cert.
* Appealed to US Supremes

Does a person maintain a subjective expectation of privacy when their trash is put in an opaque bag and left at the curb? No.

Arguments by defendant:
* Expectation of privacy came from opaque bags
* left on street for collection at a fixed time
* would have been mingled with other trash

Why?
* Once garbage bags are sent to the curb, any number of people, animals, or things can get at them.
* They were conveying it to a third party, who could also have inspected the trash or permitted others to inspect the trash.
* "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Brennan, in dissent:
* the mere possibility that unwelcome meddlers might open and rummage through the trash doesn't negate expectation any more than burglars rummaging through house.
* Mail analogy: just conveying to a third party doesn't relinquish rights. (Aren't mails specifically protected as gov't agents?)


__Notes__:
Factors to consider:
* where is the search?
* exposure to third parties (misplaced trust theory)
* use of sensory enhancements (giving the government the power to do something that it couldn't otherwise do.)

Question to ask: Did Greenwood have a reasonable expectation of privacy?
* Florida v. Riley
Is surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter 400 feet above the ground a "seach" for which a warrant is required?

No.

Why?
* Flying at 400 feet above the home was not contrary to law and regulation, andis almost commonplace. Any member of the public could have legally done the same thing.
* Ciraolo very similar, where a plane at 1000 feet could see that marijuana was growing in the yard.

O'Connor concurring:
* this may only be legitimate because there is a growing amount of traffic above 400 feet. If it was lower than that which is common, there still might have been an expectation of privacy.

Brennan, dissenting:
* Surely just one member of the public being able to do this isn't enough?
* Flying above in a helicopter is not really something most any average citizen could do, because helicopters aren't exactly household items.
* Issue is not whether police had a right to be where they were, but whether such positioning was so commonplace that an expectation of privacy could not be considered reasonable.


__Notes__:
* wouldn't rely on the lawfulness

O'Connnor
* Riley didn't show that it wasn't rare, while the dissent argues that the burden shouldn't necessarily be on Riley.

Dissent would argue that an analogy between sitting on the street and looking through the gap through a fence is not equivalent to the police using its extra power with a helicopter and sensory-enhancing tools.
* United States v. Karo
Two questions:
# whether installation of a beeper in a container of chemicals with the consent of the original owner constitutes a search or seizure within th emeaning of the Fourth Amendment when the container is delivered to a buyer having no knowledge of the presence of the beeper; and
# whether monitoring of a beeper falls within the ambit of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance.

District Court said the initial warrant was tainted, and, therefore, the warrant to search the home in Taos was tainted fruit. Court of Appeals affirmed that the Taos warrant was no good; government didn't appeal initial warrant. Court considered the warrantless installation of the beeper.

* Initially, okay, because the original container belonged to the DEA.
* Transfer of a can containing an unmonitored beeper violated no rights.
* transfer of container didn't constitute a seizere.
** there was no meaningful interference with Karo's possessory interests in the property.
** physical trespass into the container is only marginally relevant, but is not sufficient to establish a 4th Amendment issue.

* Monitoring of the beeper while inside the house, when it couldn't otherwise be seen, was a violation of the 4th Amendment.
** Violation where, without a warrant, the government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house.
** Even if it was visually observed entering, using the beeper to check to see that it's still there is a violation.

"Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight."

Poor arguments by the gov't:
* would result in too many warrants
* difficult to satisfy the particularity requirement of the 4th Amendment.

Rule: we discern no reason for deviating from the general rule that a search of ahouse should be conducted pursuant to a warrant.

O'Connor (with Rehnquist) concurring:
* A defendant should be allowed to challenge evidence obtained by monitoring of a beeper installed in a closed container only if:
** the beeper was monitored when visual tracking was not possible; and
** the defendant had an interest in the container itself sufficient to empower him to give effective consent to a search of the container. (He had an expectation fo privacy wrt the container.)
*** For example, say that a person brought a purse into someone's home that had the beeper in it. The homeowner wouldn't have a privacy interest in the purse, even though it was in his home.

Stevens, concurring and dissenting:
* Attaching a beeper was a seizure, infringing the exclusionary property right.

__Notes__:
In Knotts, the police just used the beeper when pursuing visually, but they didn't rely upon the beeper for determining the state of the barrel.

When doing 4th Amendment analysis (of which Karo is a good example):
* start with the very first actions of the police
* follow along with baby steps
** Was it a Fourth Amendment violation to put a beeper in the can? Yes. Because the DEA owned the can and the informant agreed.
** Was it a Fourth Amendment violation to transfer the can to the buyer with the beeper in it? No. Because it was minor.
** Was it a Fourth Amendment violation of his privacy rights?
*** Not until the government actually started monitoring
* Kyllo v. United States
Is obtaining by sense-enhancing technology, any information regarding the interior of a home that could not have otherwise have been obtained without physical "intrusion into a constitutionally protected area" a search?

Holding: Yes.

Government argued:
* thermal imaging is an "off-the-wall" technique, detecting only what is radiating from the external surfaces of the home.
** So is a satellite photo
** So is a powerful directional microphone.
* constitutional because it did not "detect private activities occurring in private areas."
** Not the point of Fourth Amendment activities.

Court seeks to draw a "bright line" (hehe) that techniques requiring uncommon technologies are unconstitutional.

Stevens, dissenting:
* All this did was see what the home was emitting (like other passive devices!)
* public officials should not have to avert their senses or their equipment from detecting odors, smoke, odorless gases, etc.
* new rule is hardly bright-line, because the line dims as the relevant technology becomes commonly used.
* drug-sniffing dog: good. drug-sniffing machine: bad.
* why wrong-headed?
** Not like Katz. In Katz, police could hear what was going on inside. Here, only saw what was coming outside.
** Device in question couldn't do what opinion felt should be limited.
* leave it to the legislature.

__Notes__:
Police weren't trespassing. They were in their car on the street in front of and behind the house.

How would we argue the government's position?
* _Place_
* _Riley_
* _Ciraolo_

* Moves the Court to a real-estate-driven analysis, more like the constitutionally protected area.
* United States v. White
Is the carrying of a radio transmitter by a police agent in conversations with a suspect a violation of the suspect's right to privacy?

No.

No different result is obtained whether:
# electronic equipment simultaneously records conversations; or
# electronic equipment immediately transmits them.

There is no persuasive evidence that an electronically assisted agent is less trusted by suspects than one who simply recounts based on memory.

Douglas, dissenting:
* it's worth asking if we she be imposing this risk on our citizens.
* should innocent citizens have their lives recorded without the protection of a warrant?

__Notes__:
* recordings in public restaurant as well as in the defendant's home.
* From _Hoffa_, however strongly a defendant may trust a colleague, his expectations in that respect are not protected by the Fourth Amendment.

Did this change after _Katz_?
* In Katz, it was made clear that the seizure of a conversation could be the subject of a Fourth Amendment regulation
* In both Katz and White, the government is eavesdropping on the conversation.
* If Hoffa is okay, then isn't it even better if he can record it our broadcast it at the same time?

Harlan is concerned about the overall impact on free discourse is you have to worry about everything you say to be recorded.
* Minnesota v. Carter
* Jones had held that anyone who was legitimately on the premises had a right to privacy under the Fourth Amendment.
* Rakas, however, held that someone in a car does not.
* In Olson, an overnight guest is protected.


How does the court conclude that Olson is protected but Carter isn't?
* Carter was just there for business purposes
* Just there for a short time
* Carter is more like the pizza man than like Olsen.

Kennedy suggests that most social guests are going to be treated like Olson, and that Carter is a very narrow decision.
* Zurcher v. Stanford Daily
# Does the Fourth Amendment forbid the issuance of a warrant ot search for materials in the possession of one not suspected of a crime without a showing of probably cause?
# Does the First Amendment bar searching of newspaper offices?

As to the first issue:
* Under existing law, valid warrants may be issues to search _any_ property at which there is probably cause to believe that fruits, instrumentalities, or evidence of a crime will be found.
* A subpeona duces tenum is easier to get than a warrant.
* if the third party knows that contraband or other illegal materials are on his property, he is sufficiently culpable to justify the issuance of a search warrant.

# State's interest in recovering information whether the third-party is a suspect or not.
# Unpersuaded that insisting on subpoenas instead of warrants would substantially further privacy rights without seriously undermining law enforcement.
# Properly administered warrants with sufficient specificity should afford sufficient protection against undue harms.

As to the second issue:
* the framers did not forbid warrants where the press was involved.

Stewart, dissenting:
* police searches of newspaper offices burden the freedom of the press
* diminish confidentiality of confidential sources
* impair journalists' access to ifnromation.
* searches, unlike subpeonas, necessarily will lead to exposure of all information, as police search for relevant information.

Stevens, dissenting:
* allowing for warrants for a broader range of people means that all sorts of people may have to endure searches, rather than just responding to subpeonas.

__Notes__:
V Probable Cause
What is probable cause?
* it's a level of certainty
* a finding of facts that we're likely to find seizable evidence
* Spinelli v. United States
Rule from Aguilar:
An application for a search warrant must:
# set forth the "underlying circumstances" necessary to enable a magistrate to independently judge the validity of the conclusions;. and
# evidence of the reliability of the information must be provided.

Here, the agents provided neither.

__Notes__:

What does it take to make a search and seizure reasonable?
* A warrant
* And what's a warrant? A court order that says it's okay to go search a place
* attached to a warrant is an affidavit that establishes the facts establishing probably cause

Affidavit:
* filled out under penalty of perjury
* sometimes by the cops, other times by prosecutors
* sometimes, the information comes from someone other than the officer
** hearsay: unsworn information in the affidavit (officer says, "I got the information from someone else.")
** How do we deal with the information from the informant.


What did Aguilar tell us?
* what's insufficient content for an affidavit?

What would a magistrate want to know?
* what makes the informant credible?
* how does the informant know this?

What was the problem?
* insufficient showing that he had access to those phone numbers.

What did the FBI have in Spinelli?
* that the defendant was running a handbook
* the two phone numbers

For next time, consider the Draper contrasts and what that means.


Aguilar established that the iformant be a credible person.

From Spinelli, we find that the magistrate needs to be told:
* Why do we think he's a credible person?
* How do we know that this is reliable info?
** What is the basis of the information? How does this person know what they know?
** Does it have lots of detail?

Typically:
* if the law enforcer doesn't know of his own personal knowledge

When looking at the adequacy of the warrant, you can only use what was presented to the magistrate.

What's distinctive from Draper?
* In Draper, the details given by the informant were somewhat unimportant, "neutral" details
* In Spinelli, the details were about the alleged crime.

Why didn't they vet the information?
* Illinois v. Gates
Search warrant based on anonymous tip that included travel details, but with an error. Sufficient for search warrant? Yes.

What did the police have?
* Anonymous letter with allegations of drug trafficking and details of travel to get drugs
* Police investigation, including tracking on trip to Florida and back

Would the letter have met Spinelli's requirements? Not addressed. However:
* Completely anonymous. No way to know either how the letter writer came upon this knowledge, nor the veracity of the claims.

Some recent expansions of Spinelli prior to Gates:
* Spurs in veracity prong:
** credibility
** reliability of information

New rule: "Totality of the Circumstances." Overrules Spinelli:
* Not independent and rigid elements
* Tip with information that bears fruit and sufficient independent police investigation are enough.
* Spinelli prongs are just relevant considerations, not hard-and-fast rules.

Reasoning:
* Can't make this overly technical. We're not going for conviction here; we're going for probably cause.
* If it's too hard to get a warrant, police may resort to warrantless searches
* Anonymous tips, when supplemented by independent police investigation, frequently contribute to the solution of otherwise "perfect crimes"

White, concurring:
* Spinelli's rules would have continued to work with explanation.
* No need to throw the baby out with the bathwater.

Brennan, dissenting:
* diminishing the protections of Americans to be sure probably case has been obtained in a reliable way by an honest or credible person.
* "practical", "non-technical", and "commonsense" are code for permissive police.

Stevens, dissenting:
* Note had faulty information, therefore, it's not reliable.

__Notes__:
An officer provides information, saying, "I have received information from a very credible person; I've been working with him for 10 years; his information has always led to convictions; and he tells me there are drugs at Fulton St."

Nathanson
* Was the Court wrong in saying that an officer who swears under oath that if there are drugs at a particular location

What Mounts suggests the Court is doing here is immunizing the process from review.
* Maryland v. Pringle
Does finding cocaine in a car establish sufficient probably cause to arrest all three occupants of the car?

Yes.

Why?
* Reasonable to believe all three had possession or control
* No one admitted to it or pointed the finger.
* Probably cause to believe it was one of them, so they could all be arested.

How?
* In auto
* large quantity of drugs
* money

__Notes__:
Ybarra
* Being in a bar where there is probable cause that there are drugs is not sufficient evidence to establish probable cause against

Di Re
* Can't arrest a guy just because he's in the car
* if someone's already been given up.

Recognize that probably cause is a level of certainty; it's not an absolute certainty.
V Search Warrants
Requirements
* Probable cause
* supported by oath (affidavit)
* particularly describing the place to be searched and the persons or things to be seized
* Maryland v. Garrison
Was the seizure of contraband at an apartment the police mistakenly searched prohibited by the Fourth Amendment?

No.

Why? Two questions.
# Was the warrant valid?
** Claim is that it was specified in the text that it would be the third floor being searched, and as it happened, that's what was searched.
** If they had known or should've known, it would be invalid.
# Was it executed reasonably?
** The officers didn't know, and acted reasonably in trying to ascertain that McWebb lived in the apartment
** Neither mcWebb nor Garrison objected to the searching

Blackmun, dissenting:
* Warrant was specifically to search McWebb's apartment, not Garrison's.
* Efforts to ascertain the layout of the apartment were insufficient.
* Reasonable officer would have realized the mistake as soon as they entered the third floor.
* How could they miss this in their security sweep?

__Notes__:
When do the officers notice their mistake?
* Only after they find the contraband.

Groh v. Ramirez
* What is the role of the warrant?
* If the warrant doesn't specify what the powers are, then it is no good.
* Richards v. Wisconsin
Are police officers required to knock-and-announce before entering to search?

Yes.
* Wisconsin exception to allow no-knock for all felony drug crimes too general (many wouldn't be dangerous)
* Creating a blanket exception in one category makes it too easy to make exceptions in another.

In order to no-knock, police must havereasonable suspicion:
# that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile; or
# that it would inhibit the effectice investigation of the crime by, for example, allowing destruction of evidence.

__Notes__:
Wilson v. Arkansas
* Knock-and-identify for the police to enter.

Court requires a case-specific rule.
V Warrantless Arrest and Search of Person
* United States v. Watson
May federal officers make felony arrests without an arrest warrant?

Yes.
* Other federal officers have been empowered by statute to do so
* No Court history to suggest otherwise
* Common-law basis
* Congress has plainly decided against it.

Powell, concurring:
* Logically seems like a seizure should require a warrant even more than a search. But it doesn't.
* If a warrant is required for arrest, it could go stale or be executed before ripe.

Marshall, dissenting:
* Arresting under exigent circumstances already allowed.
* If an officer witnesses a crime, those are exigent circumstances
* Common-law doesn't apply here. Felonies used to only be severe crimes
* Just because the government's done it for a long time doesn't mean it's right.
* Typically a two-part analysis
** Will privacy of citizens be better protected; and
** Whether a warrant requirement imposes an undue burden
* Ripeness argument is silly. Arrest warrant would stay fresh until mooted.

__Notes__:
Should federal officers have to go down to a magistrate and show probable cause?

Basically, it just would've been too disruptive to tradition.

Gerstein
* Even no pre-arrest determination of probable cause, after arrest they need to take the information to the magistrate to justify detention.

Cty. of Riverside v. McLaughlin:
* showing of probable cause must happen within 48 hours

Powell v. Nevada
* What happens if not within 48 hours
* basically says not much happens.
* United States v. Robinson
Can the cocaine found during a routine search during a custody arrest be used as evidence, even though it was obtained without a warrant?

Yes.
* General authority to search incident to arrest.

__Notes__:
Order of events:
* Pats him down, feels something and removes it.
* Inspects the object, a cigarette pack, but it doesn't appear to have cigarettes in it.
* Opens the pack and finds cocaine.

Why may law enforcement search on arrest?
* Clear rationale is search for weapons that might allow the defendant to harm the officer
* Preserve evidence

What's the argument here that there shouldn't be a full search?
* Once it was found that he didn't have a weapon, he should have to stop.
* Because there are so many regulations that may be traffic offenses, there's virtually no one the police wouldn't be able to stop and therefore search.

What's the defense argument?
* It's just a traffic offense, so the rationale for the search at arrest doesn't apply.
* There's only a slight reason to believe there is a risk of weapons, and any such risk can be taken care of during a pat-down.

Here, the Court sets down a bright-line rule:
* As long as it's a custodial arrest, we're not going to get into what kind of crime it is, we're going to allow for a search.

Illinois v. Lafayette
* Search of effects at the stationhouse are allowably even more intrusive.
* Whren v. United States
Police were in an unmarked car in a high drug area. Their suspicions were aroused when they passed a dark SUV with temporary plates and young occupants. When the cops made u-turn, the SUV that was stopped for 20 seconds at a stop sign turned right w/o signaling and sped away at an unreasonable speed. The cops caught up to the SUV, the cop walked up to the driver and indicated that the driver should put the car in park. The cop saw large bags of what appeared to be crack in petitionerís hands.

Petitioner tried to suppress the evidence by challenging the legality of the stop and the resulting seizure of the drugs. They claimed there was no reasonable suspicion that petitioners were engaged in illegal drug dealing activity. So the officer approaching the vehicle was just pretextual.

Court said as a general matter, the decision to stop an auto is reasonable where the police have probable cause to believe that a traffic violation has occurred. Petitioners then argued that police attempts to use valid bases of action against citizens as a pretext for pursuing other investigatory agendas has been disapproved by the Court in Wells (inventory search as a ruse to rummage for incriminating evidence), Bertine and Burger. The Court counters that in Villamonte-Marquez (boarding of vessel by customs official), they flatly dismissed that idea that an ulterior motive might serve to strip the agents of their legal justifications. Subjective intentions play no role in ordinary, probable cause 4th Amendment analysis.

Held for the run-of-the-mine case, which this surely is, there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. The district court found that officers had probable cause to believe that petitioners had violated the traffic code. This rendered the stop reasonable under the 4th Amendment, so the evidence discovered was admissible. Judgment is affirmed.

__Notes__:
Undercover cops that the SUV turns and drives away from.

In Robinson, it was noted that the cops were acting pursuant to standard police procedure. Here, that was not the case, because normally an undercover car wouldn't stop someone for a traffic violation.
* standard procedure is to let them go.
* And so, the defense says here we have evidence of a bad motive.

Why do the cases cited not help?
* In those cases the right to search was not premised on probable cause.

If the Fourth Amendment doesn't make bad motives wrong, what do we do about bad police motives?
* Equal Protection

Court decides, as long as there is no realistics alternative to allowing an officer that had probably cause that there was a violation to make the arrest, regardless of the motives.
* Atwater v. City of Lago Vista
TX law makes it a misdemeanor punishable by fine only for a front seat passenger not to wear a seatbelt in a car equipped with seatbelts, or for a driver to secure small children riding in front. The arrest of anyone committing a violation was expressly authorized by statute. The officer said something to the effect of ìWeíve met before.î Then asked for her driverís license to which she said that her purse was stolen the day before. He then said ìIíve heard that a couple hundred times.î When she asked if she could take her upset 3 and 5 year old to her friendís house nearby, he said ìyouíre not going anywhere.î The friend learned of the situation and came by to get the kids. Then the officer arrested the motorist arrested, handcuffed, booked and detained in jail for one hour for failing to wear her seat belt and failing to fasten her children in seat belts. She plead no contest and paid a $50 fine.

The motorist sued. The district court granted summary judgment in favor of the City. The Court of Appeals concluded an arrest for a minor offense isnít barred by the 4th. It was undisputed that the officer had probable cause to arrest and had not conducted the arrest in an extraordinary manner, unusually harmful to motorist's privacy interests.

The Court rejected petitioners' argument that peace officers' authority to make warrantless arrests for misdemeanors was restricted at common law to instances of breach of the peace (non-felony offenses that tended toward violence). The court also rejected petitioners' argument for a new modern arrest rule (no custodial arrest if no jail time involved and Gov canít show need for immediate detention). The Court was comforted by the fact that thereís no epidemic of these warrantless arrests for minor offenses, and didnít think that a case by case standard was warranted. The Court conceded that the officer used poor judgment at best and subjected the motorist to unnecessary humiliation.

US Supreme Court Held that 1) if a police officer has probable cause to believe that an individual has committed even a very minor criminal offense in the officer's presence, then the officer is authorized--but not required--by the Fourth Amendment to make a custodial arrest without balancing costs and benefits or determining whether the arrest is in some sense necessary; and (2) under the circumstances presented, the driver's arrest satisfied the Fourth Amendment's requirements.

O'Connor, Stevens, Ginsburg and Breyer dissented, expressed the view that (1) where there is probable cause to believe that a fine-only offense has been committed, a police officer should issue a citation unless the officer is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the additional intrusion of a full custodial arrest; and (2) the record in the case at hand made it clear that the driver's arrest was constitutionally unreasonable. This is an easy/clear enough standard for the court. It doesnít matter that there are just a few cases like this. Subjecting someone to a full custodial arrest is a substantial infringement on oneís privacy and rights, thus itís necessary that the arrest be reasonable.

__Notes__:
Argument is that under the Fourth Amendment, this is an unreasonable search and seizure.
* No right to arrest on these misdemeanors
* Not clear that the state has ever had the power.
* If it's not clear that the state ever had these powers, then the power should be examined anew

Why is this reasonable?
* How would this work if arrests had to be considered on a case-by-case basis
* Police might not always be able to know what crimes are jailable.
* This just doesn't happen often.

For next week, read through Colorado v. Bertine (213)
V Warrantless Seizure and Search of Premises
* Payton v. New York
Is an arrest without a warrant reasonable in a private home?

__Notes__:
Difference from Watson and Payton? Geography is changing, from a public place to a private home.

Why start a criminal case by an arrest?
* Right to arrest exists separately of the right to incarcerate. Why?

Arrest warrant required to enter and arrest in a home.
* Becomes a general warrant

Is it really so different to enter the house?
* Dissent says there's no need, because the common law has provided ample opportunity to come out.
*

Why would it not be practicable to have a search warrant requirement to enter and arrest?
* Because the requirements on a search warrant would require too much particulairty.

Steagald (fn b, 172)
* arrest warrant is authorization to go in and arrest
* however, it's not sufficient to go in and search, as if it's a search warrant
* Chimel v. California
__Notes__:

May the police search a home upon the arrest of one of the residents?

No.

What are the traditional reasons for allowing police to search on arrest?
* To search for weapons
* Prevent destruction of evidence
* Prevent escape

Warrant necessity on arrest:
* Within wingspan on arrest

What must the police do?
* either get a search warrant ahead of time when they got the search warrant
* get one after the arrest.
* Vale v. Louisiana
__Notes__:
May a house be searched incident to arrest of a defendant outside his house?

No.
* Police should have secured the house and gone to get warrants.


fn a, 181
* Segura
* McArthur
* California v. Carney

__Notes__:
Is a motorhome covered by the vehicle exception to allow search incident to arrest?
Yes.

Vehicle search, not search incident to arrest.

Why does the court view vehicles differently from residences?
* ready mobility (which traces to ships)
* expectation of privace is significantly less
* heavy regulation

Chadwick:
* Required warrant to search foot locker
** Isn't that mobile? Shouldn't that apply here?
** Greater expectation of privacy.
*** You can't see into it
*** Not heavily regulated

Why isn't a motorhome more like a home, more shut out like a foot locker with a greater expectation of privacy?
* Too difficult for police officers to discern whether it's a vehicle.

Court leaves open the possibility that a motorhome may in some cases be considered a home.



Probable cause allows you to search any vehicle and any containers within.

Search incident
* Maryland v. Dyson
__Notes__:
fn a, 185

No exigency required.

Automobile exception is sufficient.
* Florida v. White

Should the police have to have not only probable cause, but also a warrant to seize a car?

No.

Probably cause is sufficient.
* Thornton v. United States

__Notes__:
For a house?
* Probable cause + warrant

Car?
* Probable cause, no warrant needed

Foot locker?
* probable cause + warrant


What happened in Belton?
* went into jacket in passenger compartment and found drugs.
* why is this lawful?
** search was incident to an arrest that takes place in the context of a car.
*** No probable cause required. Arrest is enough to search blanketly.
** Court is assuming:
*** Police want to search the car
*** If the police can't search because they arrest the guy _in_ the car, they'll endanger themselves by arresting the guy in the car.
*** So, we allow them to search the car even though they've removed the defendant and put him in the police car.
** Recent occupant theory.

How does Thornton differ?
* defendant had actually left the car when stopped by the police
*

Check Scalia's dissent.
* argument about
*
* perhaps a broader police authority
* Knowles v. Iowa

__Notes__:
Iowa said a citation allowed a search.

What's the risk of not allowing a search for a citation?
* Encourages arrest in place of issuing citations

Rule: Issuing a citation does not allow for a search.

Why?
* It's brief. There's no prolonged contact to come up with
* They have other options:
** patdown
** order driver out
** and so on
* California v. Acevedo

__Notes__:

Events
* Police observed him leave Fedex with package known to contain marijuana
* went to house
* came out with paper bag and put it in his trunk.
* police stopped him and searched trunk

Here:
* Which is this case most like?
** Sanders

Sanders:
* briefcase put in back of car
* court held it still needed a warrant
* probable cause only extended to briefcase

Ross:
* Something in the trunk, but they had probable cause for the vehicle
* Why is this different?
** probable cause extended to the whole vehicle, which contained the bag

Result:
* Court overrules Sanders
* Can search so long as they had probable cause to believe that there was contraband.

Has Acevedo solved the anomalies?
* No. They still can't search the bag before he gets into the car.

Court could have:
* overruled Carroll and said you could search only on a fact-specific basis.
* Wyoming v. Houghton

__Notes__:

Search of car after traffic stop and sighting of hypodermic needly turns up purse on the rear seat belonging to a third-party who was a passenger in the car.

Does a third-party's possession in a car require a heightened privacy interest?

Di Re comes up:
* the purse wasn't on the passenger here

Here:
* If it's in the car, it's searchable.
* strong governmental interest in police doing their jobs

Is this like a Belton case or a Carney case?
* Carney, Ross, Carroll
** They had probable cause based on the needle.

Or, it could be like Belton
* Search incident to arrest
** destruction of evidence or access to weapons
** applies regardless of whose property the purse is
* Colorado v. Bertine

__Notes__:
Events:
* Arrested for DUI
* Van towed in
* As part of procedure, van is inventoried

Is the inventory allowed?
* Yes.
* It's a community caretaking rationale.
** If not inventoried, they might be falsely accused of taking things
** protecting the belongings of those who've had their stuff inventoried
** protects police from danger.

Opperman
* Glove box of vehicle
* How would this apply?
**

Lafayette
* Search pursuant to putting him into custody, but it was stuff that was on him. (came up in Robinson)

How are Opperman (and Bertine) and Lafayette different?
* the cars aren't going to jail with them
* the cars are going to a locked police impound yard.

Court rejected that argument, because:
* Still risk to the cars even in an impound lot.

From Wells:
* the theory is that if there are police procedures, that will control arbitrariness.

Policy problems if it's not uniform
* didn't have to inventory
* No control over discretion, because no policy requires full inventory
* at least if there is a policy, the police have admitted it's a significant concern.

For next week, through TLO
V Detentions and Related Searches
* Catching up

How did we get here?
* First, we needed to see if something was a search or seizure.
** If not, then there's no Fourth Amendment restriction.
** If so, we need to see what that means under the Fourth Amendment

If it is a search or seizure, we look at the conduct:
* Was it an arrest?
** Was a warrant required?
* Vehicles
** Assuming arrest itself was lawful, what sort of search powers come with that?

Why, for instance, could we allow a search back into a vehicle (Vale) but not back into the home?

Then containers came into the car, then got treated as part of the car, and then even if it belonged to someone other than the person who first brought on suspicion, anyway.
* Terry v. Ohio

Officer observed three men casing a store. He approached and asked them their names, and then proceeded to pat them down, finding a pistol on Terry.

In the circumstances of this encounter, were Terry's rights to personal privacy violated by an unreasonable search and seizure?

No.

Arguments for:
* exigent circumstances demand flexible responses, graduated in response to the amount of information available
* should distinguish between a "stop" and an "arrest", a "frisk" from a "search"
** Should be able to stop and frisk upon suspicion of connection to criminal activity
** should be able to make formal arrest upon finding something incriminating in the frisk
* stop and frisk amount to "minor inconvenience and petty indignity"

Arguments against
* authority of police must be tightly circumscribed
* Fourth Amendment is about protecting person security in an effort to protect the individual from the agents of the state

Characterization by Ohio
* right of police officer to make on-the-street stop, interrogate, frisk for weapons
** Court says it's greater than that, because it involves the admissibility of the findings of that frisk, which cause it to rise to an arrest.

And so:
Is it always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probably cause for an arrest.
* Anytime a police office prevents someone from leaving, that person has been seized
* And it is almost certainly a search

Test:
* Balance the need to search (or seize)
* against the invasion the search or seizure entails; and
* Policeman must be able to point to specific and articulable facts which, taken together with rational inferences fom those facts, reasonably warrant the intrusion.
** "Would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?"

What were the governmental interests?
* effective crime prevention
* immediate interest of the police officer to protect himself

Petitioner argues:
* not always unjustified to search for weapons; only before probable cause
** Court responds:
*** Fails to take account distinction between search incident to arrest and limited search for weapons
*** Assumes the law has already worked out the balance between the governmental interests

However, search for weapons must be circumscribed by the exigencies of the situation.

As such, it is held that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime."
* the issue is whether a reasonably prudent mabn in the circumstances would eb waranted in the belief that his safety or that of others was in danger.

Michigan v. Long:
* areas of car where a weapon may be kept may be searched if the officer posseses a reasonable belief based on specific and articulable facts, which, taken together with the rational inferences...
* rationale: because they can't arrest him, they need to search the car for weapons

Pennsylvania v. Mimms & Maryland v. Wilson
* officer may require driver and passengers to leave the car

Hiibel v. Sixth Judicial District:
* Does not violate 5th Amendment to provide name in a Terry stop

Harlan, concurring
* right to frisk depends upon the reasonableness of a forcible stop to investigate a suspected crime
* where the stop is a reasonable, the right to frisk must be immediate and automatic.

__Notes__:
Main argument of state: stop-and-frisk isn't an arrest or seizure, and therefore there are no Fourth Amendment implications at all.

Why not demand a warrant here? It's completely unsuited to getting a warrant.

What we'll be looking at is how to determine whether the search is reasonable?
* What is the government interest involved?
* What is the level of intrusion on the individual?


What is the restriction on the level of intrusion here?
* It must be brief

What must be put forward to show that it's reasonable?
* specific and articulable facts that reasonably warrant the intrusion (that the person is dangerous.)
** Why articulable? Because the officer needs to be able to put it into words so that it can withstand an after-the-fact review.

Hensley:
* Can Terry be extended where the crime is over?
** Yes. But doesn't it sort of stretch the notion of crime prevention?

Post-Terry:
* When do we have a detention stop?
* Are the facts sufficient to support that detention? (i.e., what is a reasonable suspicion?)
* What happens if the detention goes on for a long time or becomes too intense?
* Florida v. J.L.

Is an anonymous tip, without more, sufficient to justify a police officer's stop and frisk?

No.

Reasoning:
* No audio recording of the tip
* nothing known about informant
* Unlike White, where there was specific information given about what the person would do, the officer here made no attempt to discern if the target actually had a gun. White was already borderline. (sufficient indication of reliability to provide a "reasonable suspicion to make an investigatory stop."
* Here, nothing to give rise to "reasonable suspicion" other than the anonymous tip

Florida suggested a firearms exception:
* such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely.
* this would lead to slippery slope, broading to narcotics and beyond.

Kennedy, concurring:
There may be ways to bring about more credence in anonymous tips, but they don't exist today.

__Notes__:
What is the difference here from Terry?
* articulable facts came not from the officer's personal observations, but from an anonymous tip

What is the difference from Gates?
* In Gates, they were trying to get a search warrant, and needed to use the anonymous tip to show probably cause.
* Here, we need to determine how many fewer facts.

White:
* distinction is the predictive information regarding the movements, versus just a statement that someone was at a bus stop.
* Illinois v. Wardlow
Is unprovoked flight from officers sufficient to create reasonable suspicion allowing for a stop and frisk?

Yes.

Reasoning:
* Headlong flight -- where it occurs -- is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive as such.
* reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
* In Florida v. Royer, someone can walk away and ignore an officer. But flight is more than refusal to cooperate.

Respondent argues that there are innocent reasons for flight.
* Court doesn't disagree; it just says that it's not about absolute certainty; it's about reasonable suspicion, and fleeing gives rise to reasonable suspicion.

Stevens, dissenting:
* "Unprovoked flight" is way too broad for a per se reasonable inference.
* No way to arrive at reasonable suspicion
* Even in high crime areas, unprovoked flight can't give rise to reasonable suspicion (one would think there could be lots of things to flee from, perhaps the least of which is the police.)

__Notes__:
* Florida v. Royer
Detectives felt passenger met the characteristics of a "drug courier" profile. They approached him at the airport.
* assumed name
* one way ticket

Court observes:
* in the absence of probable cause or exigent circumstances, validity of search of Royer's luggage rests on whether he consented. State has responsibility for showing that consent was freely and voluntarily given.
* No Fourth Amendment violation for merely approaching a individual.
* Terry allowed for seizures of the person if there is articulable suspciion that a peroson has committed or is about to commit a crime.
* Terry created only limited exceptions
** Dunaway v. New York (suspect taken from home to police station, not arrested, but interrogated for an hour) Reasonable suspicion of a crime is insufficient to justify custodial interrogation even though the interrogation is investigative.
** Davis v. Mississippi: detentions just for fingerprints might be permissible
** Investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
** investigative methods should be the least intrusive possible.
*** Just because less intrusive means might have been possible, doesn't mean the search was unreasonable
* Statements given during an illegal detention are inadmissible even though voluntarily given

State gives three reasons for holding Royer that Royer consented:
* Entire encounter was consensual
** Court disagrees. When the police took his ticket, license, and asked him to accompany them, he was effectively seized
* If so, there was reasonable articulable suspicion to justify a temporary detention
** What had begun as something allowable under Terry had expanded into an investigatory procedure in an interrogation room
** They had his ticket, his license, and his luggage
** more intrusive than necessary -- should have given him back his license and ticket and informed him he was free to go.
** No proferred justification for moving him
** No mention of investigating the contents of his bags via dogs
* not being illegally held because there was probable cause by that point
** Did not exist at the time he consented to search his luggage

Brennan, concurring:
* scope of Terry stop and search must be extremely limited
* even initial stop of Royer was illegal
** As soon as cops asked for license and ticket, they engaged in a show of authority and restrained his liberty

Blackmun dissenting:
* Given the strength of society's interest in ocercomign the obstacles of the drug trade, such conduct should not be subjected to a requirement of probably cause.
** more in common with automobile stops than an arrest
* because the detention was not unlawful, his consent should judged on the totality of the circumstances

Rehnquist, dissenting:
* departs with the seizure aspect of the follow-on "interrogation"
** Should they have let his luggage go on?
** should they have questioned him and asked to open his bags in the main concourse?
* what was unreasonable about the steps these officers took with this suspecton this particular day?

__Notes__:
Three ways to get into luggage:
* warrant
* exigent circumstances
* consent

Was there a Fourth Amendment issue with asking for ID and ticket?
* No. No detention.

What about when they keep the ticket and license and ask him to go with them?
* Yes. We do have a detention. Does that make it wrong?

Did they have articulable facts from which to infer reasonable suspicion?
* yes. Differences between name on ticket/ID/bags
* no probable cause
* U.S. v. Drayton
Must officers provide a warning to passengers that they need not cooperate with suspicionless drug interdiction effors?

No.

Must consider all the circumstances surrounding the encounter.

In Bostick:
* Officer did not remove gun.
* Passengers were advised that they could leave at any time.

Respondents argue:
* Cop displayed his badge
* One officer sat at the front and observed
** He didn't prevent anyone from leaving
* Few have declined to cooperate
** Most cooperate because they know it enhances their safety.

Souter, dissenting:
* tickets taken by driver, then he vanished
* officers took control of entire bus
* no reason for any passenger to believe the bus would continue on (still no driver) until everyone cooperated, because no announcement had been made
* Hard to imagine brown or Drayton felt they had nothing to lose if they didn't cooperate
* Facts here surely required more than just a soft tone from the officers
* effectively, would a passenger have felt free to end his encounter with the officers by saying no and ignoring them thereafter?

__Notes__:
How is this like the concourse situation?

How is this different from Royer?
* Here, the people were on the bus and wanted to go somewhere.

Delgado:
* INS went into factory and had officers at the door
* Court held that there was no detention. No reasonable threat of detention.

Be sure to look at the factors that the Court relies upon here.
* What factors does the Court rely upon to say that a reasonable person would feel free to terminate the relationship?

Hodari D:
* What happens if the police try to make a seizure and the person doesn't comply and flees?
** Police would either have to
* U.S. v. Place
Outcome: principles of Terry would allow for brief detention to further investigate based on officers' investigations, but the seizure here was unreasonable because it was well beyond brief.

Bags taken on Friday afternoon, retained until Monday AM.

Government argues as to the reasonableness of seizure:
* point at which probable cause becomes necessary is more distant for property than for the person hmself.
** Rejects outright.
** Such a seizure effectively restrains the person, since his travel plans are disrupted

Length of detention alone makes it unreasonable
* 90-minute detention unreasonable on its own
* Police had lots of time to arrange for dog
* Police should have: 1) informed him of the length of the seizure of his bags; 2) where they were being transported; and 3) what arrangements should be made for their return,.

__Notes__:
How might you argue that Terry has no place here?
* Detention of property v. detention of person
* this is purely an investigatory tool, not a safety or crime prevention tool
* once you property is seized, the dispossession is absolute
** Court says it could be short-term, like just holding it until a dog can sniff it
** when you give it to a third-party, another grabbing it is not a problem.
* Indianapolis v. Edmond
Start of Administrative and Regulatory searches.

Camara:
* Needed to show a rational regulatory scheme for inspection of buildings, based on governmental

These depart from the standard probable cause and reasonable suspicion in two ways:
* Must still show some sort of individualized suspicion; something about the individual; or
* No individualized suspicion at all. Some rational, non-discriminatory regulatory scheme in order to carry out some scheme

__Notes__:
Some broad categories:
* See the beginning of section II, page 13.

How does the state try to make the argument?
* Argues similarities between trafficking in people and trafficking in drugs, both of which result in great social harms.

Distinction from Whren?
* You don't look at purpose of an individual cop making a stop with probable cause
* But when there is no probable cause in the administrative search.
* New Jersey v. T.L.O.
How would we argue that the search is unlawful?
* Student would argue that she had an expectation of privacy?
* Before these cases, we'd say we need:
** A warrant
** At a minimum, probable cause

What does the Court decide the test is in a school?
* Was the action justified at its inception?
* was the search actually conducted in a scope reasonably related to the circumstances which justified the interference in the first place?



Court finds that there is:
* high government interest in maintaining a workable educational environment
*

Reasonable suspicion of a rule violation allows the search, not reasonable suspicion of a broken law.
V Miranda
Issue is confessions.

Tension is between the desire to solve crimes and the rights to privacy and general freedoms.



Quick Structural Review
* Recognize that there are three different challenges when talking about a confession:
** Due Process (fundamental fairness)
*** Totality of the circumstances
**** What the police did
**** ...
** 6th Amendment right to counsel (only when formal charges start)
*** Once this attaches, the government may not deliberately elicit information from the individual in the absence of counsel
*** No longer clear if there's a difference between deliberate elicitation and coercive interrogation
** Fifth Amendment Miranda protection
*** Custodial interrogation is inherently coercive, thus threatening the Fifth Amendment
*** Constitutional obligation of the state to protect Fifth Amendment value
*** Requirements are: custody and interrogation
*** Whenever there is direct questioning, that is interrogation
*** As we learned in Innis, things other than questioning can be interrogation (even if in Innis, it was not.)
* What can police do when someone wants one of their rights?
** Recreate chart
** Moseley says that when police come back to talk about a different crime, that may be alright

What does it take to invoke rights?
* Ambiguity doesn't do it.
** In Davis, must be unambiguous.

What are the consequences if there is a Miranda violation?
* Quarles
* Siebert/Elstad

Is Miranda Constitutionally based?
* Important thing is that it's still operative for the states

There may not be any Constitutional violation at the time of taking statement; it may be that the Constitution is only violated when the statement is used in court.

For next week: read
* Miranda v. Arizona
The prosecution may not use statements stemming from custodial interrogation unless effective procedural safeguards securing the privilege against self-incrimination are demonstrated.

Fifth Amendment: "nor shall be compelled in any criminal case to be witness against himself"

* Custodial interrogation exacts a heavy toll on invidividual liberty and trades on the weakness of individiuals
* Statements not involuntary in traditional terms
* Concern is adequate safeguards to protect Fifth Amendment rights


* Look to historical development -- respect a government must accord to the dignity and integrity of the citizens
* FR Criminal Procedure
* Malloy v. Hogan -- privilege applies to the states
* Escobedo

* So critical, "we will not pause to inquire in individual cases


__Notes__:
Why do we have a protection against testifying against one's self?
*



5 questions arise from the Fifth Amendment:
* Who can assert the privilege?
* What does it mean to have one's witness compelled?
* What does "in any criminal case"?
* What does it mean to be a witness?
* What evidence is incriminating "against himself"?

In Escobedo:
* Sixth Amendment extended to pre-indictment stage (before being formally charged)

Why does the majority go through all of the police manuals? They need to try to establish compulsion.

Court suggests that the power of compulsion is stronger in the courtroom

How does the Court get around the "criminal case" issue?


What triggers this?
* In custody
* Interrogation


What was the problem that led the Court do this decision?
* Simplicity of review in confession cases

What's the problem with Miranda in theory?
* there may be nothing wrong with the confession

What's wrong with this in practice?
* Cops who would lie and cheat anyway are still going to lie and cheat about rights being given.

What's required of the police?
* An affirmative waiver of rights

Fundamental argument:
* How much pressure should the state be allowed to apply?
* Oregon v. Elstead
Cops went to house, asked about involvement of a robbery, took kid in. At station advised him of rights, he waived his rights and confessed.

Held not to violate Miranda.
* Yarborough v. Alvarado
17.5 year-old was brought in voluntarily by parents, given breaks, etc. Was that a custodial interrogation?

Court says that's not an interrogation.

Custody must be determiend based on a reasonable person, and for the standard here, age and experience is not an added to the objective standard.

__Notes__:
No question that he was interrogated, but the question was whether he was in custody.

Court followed path of three cases:
* Mathiason
* Beheler
* Berkemer
* Rhode Island v. Innis
Man is arrested as a suspect in robbing and killing a taxicab driver with a shotgun. He asks for lawyer. Cops start chatting about how dangerous to the disabled kids this could be if they don't find the gun. Suspect tells them where the gun is.

Here, Court holds that he was not interrogated within the meaning of Miranda.



__Notes__:

No need to consider a waiver; there's no showing of express waiver at all.

Functional equivalent of direct questioning can be an interrogation:
* words or actions of police which police know or reasonably should know are liekly to elicit a criminal response


Dissenting, Stevens says it should be any words or actions intended to elicit a response.
* Illinois v. Perkins
Must a suspect confined in a prison be given Miranda warnings before being interrogated by an undercover cop who he is not aware is a cop?

No.

Court holds that if the suspect is not aware of the cop's status, there is no involuntary grant of information.


Dissenting, Marshall says the nature of prison makes it such that there is.

__Notes__:

Wasn't he (1) in custody and (2) interrogated?
* Minnick v. Mississippi
Once a suspect has requested counsel, may officers come in later and try to get him to talk anyway? No.


Davis v. United States: equivocal statements about gaining counsel do not require a halt to interrogation (unambigously clear)

Bradshaw: if the suspect starts questioning about the case, he may waive his request for counsel.

__Notes__:
Miranda allows:
* Silence
** Miranda suggests that for the same offense, questioning can't change
** Under Mosley, probably okay to come back and try to get past right to silence for a different charge
* Attorney
** Under Edwards, for the same offense, they can't come back (fn c, p362)
** Id. (Roberson)

6th Amendment:
* Right to counsel
** At arraignment, ask for counsel, then after being returned to jail, advised of Miranda and questioned. Work?
*** fn f, pg 383
*** 6th Amendment right is offense specific. Jackson
*** Can come back and question about different offenses. McNeil
*** Cobb: even where the crimes were factually related, it's okay to try to get a waiver. Cobb.



And then, we consider whether it applies to the same offense or different offenses.

Here, attorney came, talked, then sheriff came back the next day.
* New York v. Quarles
There is a Miranda exception for preserving public safety.

(Grocery store and missing gun case)

__Notes__:
What's the problem with a public safety exception?

If there is one, should it apply here?
*

Even though all of the triggering mechanisms are there, we can balance it, because it's not a 5th Amendment violation, it's just a Miranda violation.
* U.S. v. Patane
Should evidence discovered by way of non-Mirandized interrogation be barred?

No. Non-testimonal evidence is not prohibited by the Self-Incrimination Clause.

__Notes__:
Miranda operates at interrogation, while the Fifth Amendment protects at trial.
* if Miranda is not complied with, is there any problem at interrogation?
* In Quarles, O'Connor already made a case that statements are different from physical evidence.

Why should it be easier for the government to get a statement admitted after a violation?
* Miranda advisement becomes a curative process.


Wouldn't this create an odd connection between searches incident to arrest if volunteering info would make evidence inadmissible, but allowing the police to do the search wouldn't.
* Missouri v. Siebert
Is two-phase questioning a violation of Miranda?

Yes.

__Notes__:
What does the plurality argue?
* Are these mid-stream Miranda warnings equivalently effective as initial Miranda warnings would have been?

Four different approaches coming out of Siebert.
* Elstad approach -- look at whether the first statement was voluntary; if so, Miranda warnings are presumed to make the second statement admissible.
* Plurality -- Ask the question, are the mid-stream warnings as effective as early warnings would have been?
* Kennedy -- If no bad faith, then Elstad
* Breyer -- tainted fruit

For next time, read through Moran (note that it's out of order.)
* Dickerson v. U.S.
Court concludes that Congress clearly intended to overrule Miranda, but it can't.

What about the Miranda Rules makes such a disconnect from the Fifth Amendment?
* Notification of right to counsel.

How did Rehnquist get to it?
* If the states are required to do it, then it clearly must be a Constitutional decision.
* ¤ 3501 reversed the protections that Miranda came up with.
* stare decisis
* maybe Rehnquist just came to believe over the years that Miranda wasn't really such a bad deal.

¤ 3501 isn't a valid alternative, because all it does is bring back the standard that the Court in Miranda said was not good enough.
* Chavez v. Martinez
Thomas argues:
* taking of statement at interrogation isn't a problem, it's the use at trial.
* that there could be a 14th Amendment claim,

What actually happens here?
* The only thing decided upon is that it should be remanded.

What does Scalia say?
* No 14th or 5th Amendment violation, so it should just be reversed.

All we know from here is that the case has been remanded.

What would be a 14th Amendment (substantive due process) violation?
* Maybe if there was an attempt to exploit the pain.
* See Kennedy and Ginsburg


Souter's opinion is perhaps the most critical one. His Part II was the only opinion to receive a majority.

Most important piece for our purposes is to recognize that the 5th Amendment and 14th Amendment are two distinct situations, one concerning maybe just at trial, while the 14th Amendment substantive due process issues could apply pre-trial

Rehnquist and O'Connor were with Thomas and Scalia on the Fifth Amendment.
* Brewer v. Williams
Why might the Court have not wanted to address the Miranda issue?
* Innis hadn't been decided
* they might not have wanted to get into that, because they had a narrower way to do so.


What differentiates this from Massiah?
* In Massiah, he didn't know he was talking to the gov't
* Here, Williams knew he was talking to the gov't.

Why's that important? It suggests that he was waiving his rights.
* What's wrong here? There's no relinquishment of his right to counsel.

How do we focus on the interrogation differently here than we would under a Miranda case?
* rights change


Why did the Court decide that this was questioning, even though it doesn't seem like an interrogation?
* the detective knew stuff about this guy, and he used that to get him talking.
* Kuhlman v. Wilson
What's the problem, from Henry, from putting an informer in the cell with the arraigned defendant?
* the informant's are effectively being paid to nudge people along, not just to sit there passively.

In Henry, just an "ear" in the cell would have been okay.

Court here says that the actions must be closer to interrogation that just friendly conversation.
* Moran v. Burbine
Attorney is told that he won't be questioned.


How does the defendant shape his defense?
* Sixth Amendment
* Miranda through Fifth
* Due Process

What's the problem with each of these?

Sixth Amendment?
* He hadn't yet been formally charged.
* How might the Sixth Amendment be brought in?
** He had an attorney through his other legal problems and had an established relationship, and he argues that the gov't shouldn't be able to obstruct that.
** Court says that the adversarial process hadn't begun yet.

Fifth Amendment?
* Had been properly Mirandized and he properly waived them
* He says his waiver was not valid because he didn't have all of the information, and that omitting the information created a misleading decision on his part.


Fourteenth Due Process
* Cops lied to attorney
* Fail to inform him
* Court says the behavior is just not too extreme.
V Fourth Amendment Limitations
Distinctions between a search warrant and a subpoena:
* Subpoenas don't require any showing before being issued.
* Subpoenas can be used against a third party
* possibility of subpoenaed person to be forced to
* Boyd v. U.S.
Focus for us here is the grand jury as an investigatory device.

Grand jury subpoenaed documents that may be incriminatory, and there was a statute that allowed that if a subpoena was refused, the assertions by the plaintiff would be accepted as confessed.

Entick v. Carrington;
* Police entered house, and Entick was suing the police.
* suing over the taking of his papers.

What was the primary difference here between Entick? Here there's no trespass. It's just a subpoena to bring the papers to the courtroom.

Court joins the 4th and 5th Amendments together, and says that when it tells you to bring your papers, it's forcing your thoughts (your papers) to work against you, and it's in effect seizing you.

Changes since:
* Warden v. Hayden:
* Andresen v. Maryland: state may search for documents
* Hale v. Henkel: Court can compel an individual to come foreward.
* U.S. v. Dionisio
What are the 2 potential 4th Amendment issues?
* Seizure of the person, because they are forced to go to the grand jury
** Not taking
* Taking of voice exemplar is seizure
** No expectation of privacy in your voice.
* Fifth Amendment?
** What does it mean to be a witness? To give testimonial evidence.
** Think about taking a blood sample in a DUI case.
* If it's too sweeping, Hale v. Henkel says it can be challenged on that ground. However, because this is a grand jury, there's nop probably cause requirement, so it really has to go over the top.
* Branzburg refused 1st amendment privilege for reporters to refuse to testify

By and large, grand juries are left without much court supervision.

What's the distinction here from Davis v. Mississippi (with the black men rounded up for fingerprinting?)
* Court says that this is just a nice visit to the courthouse
* what's taken while there is not of 4th Amendment concern

Dissent would require a reasonable reason for the subpoena.
* For the physical evidence, there's nothing that works comparably to the ability to refuse to testify, and that seems somehow distorted.
* U.S. Mandujano
Prosecution was trying to turn this small fish in an attempt to get to the bigger fish.

Prosecution informs him of his duty to testify. Was told he had a 5th Amendment right and was told he had a right to have an attorney outside the room, but Mandujano said he couldn't afford one.

And then he lied to the grand jury.

Mandujano argues that he should have been informed that he could have an attorney appointed for him if he could not afford one.

Why does the Court say that's not to?
* tendency to force compulsion in a police interrogation room.
* but the friendly atmosphere of the grand jury room wouldn't be so bad

Miranda warnings wouldn't really be equivalent
* can't be silent
* attorney can't be present during questioning


U.S. v. Washington: a person doesn't have to be told that he is a target of the investigation when subpoenaed.

Main lesson: an individual who wants to claim a 5th Amendment privilege must assert it, and the government generally doesn't need to inform you of it.

Question is, does the government have to act as an educator of your Constitutional rights?
* Kastigar v. United States
What was the problem with the immunity statute in Counselman?
* Allowed the fruits of the testimonial evidence to be used against the person
* That was not an adequate substitute.

That led to transactional immunity


Kastigar led to a different immunity statute:
* Didn't provide for transactional immunity
* Didn't allow the use of derivative findings

Kastigar argued that no immunity statute could be passed by Congress
* 5th Amendment provides complete protection from giving information to the government

The protection is really what the Amendment says: not to be witness against yourself.

Kastigar then argues, supposing it's not such a blanket right, this still doesn't leave a person in the same place.
* the government is still getting this information
* even though the protection against derivative uses is there, the government may still be able to make some use

Rule: The government must present proof that they didn't get their evidence based on the testimony. They must also show the independent source.
* U.S. v. Fisher
Lawyer
* Person?
* Compelled?
* Testimonial?
* Incriminating?

Taxpayer
* Person?
* Compelled? Here, not compelled at all. The subpoena wasn't sent to him.
* Testimonial? No. Prepared by the accountant. Not testimonial.
* Incriminating?

Accountant
* Person?
* Compelled? No.
* Testimonial? Yes. But not the taxpayer's testimony.
* Incriminating?


Here, the case starts with the attorney arguing that his being forced to compel would violate the 5th Amendment right not to incriminate himself.

Had the documents been in the taxpayer's hands, could he claim the 5th?
* If so, then the attorney could refuse under the attorney-client privilege.

Katz:
* Even though his conversation was private, there would have been no compulsion to provide the testimony.

What about the contents of the document here?
* Here, the contents of the document may be compelled, because the writing of the document was not compelled.
* However, he is being compelled to produce the document. But the production of a document is not testimonial.
** How might that not be?
*** Conceding that the documents exist
*** Conceding that they're possessed
*** Conceding to authenticity of the documents

Here, much of that doesn't apply here.
* Possession wouldn't be incriminating anyway
* Contents aren't protected

What if they were private papers and diaries?
* Not testimonial, because there was no compulsion to write those private documents
* However, conceding that private documents exist and producing should be considered testimonial, according to Brennan.


Rules:
* No 5th Amendment right for private papers when held by an agent (5th Amendment protects against compulsion, not privacy)
* U.S. v. Hubbell
The special prosecutor asked Hubbell for detailed lists of documents he had during the questioning he gave under immunity.

The special prosecutor, under the auspices of enforcing the immunity agreement, subpoenaed 13,200 documents that had been described by Hubbell.

Hubbell argues that describing the documents was testimony that can't be used as a derivative, within the bounds of the 5th Amendment.

Dissent at Circuit argues that the government isn't going use the fact that he brought the documents, they're just going to use the contents of the documents. However, their access to the documents and any use of them is all a derivative of him describing the existence of the documents.

Thomas & Scalia concurrence want to revist being a witness.
* At present, in order to be a witness, the person must be providing testimonial evidence.
* Thomas & Scalia suggest that it's providing evidence against one's self
V The Duty to Disclose
Historically, defense discovery has been limited. If the defense knows what the prosecutor's evidence is, they may lie and cheat in order to avoid sharing or kill the prosecutor's witnesses. Basically, they'd resort to perjury or violence to avoid conviction.

Once defense discovery became more common, it was common that the prosecution got little discovery.

What we're talking about in this section is constitutionally mandated discovery. What does fundamental fairness under the due process clause require the prosecution to provide.

Generally, criminal discovery is much more limited than civil discovery.

What sort of evidence in the prosecutor's file has to be turned over to the defense?
* U.S. v. Bagley
Defense requested any evidence that the informants were compensated.

What sort of evidence has to be turned over to the defense? Evidence that is favorable to the accused.
* evidence that impeaches government witnesses can be favorable to the accused.

Court sets out a materiality standard:
* No requirement to turn over all favorable evidence, just material favorable evidence.

Standards of materiality for three Agurs situations set out the standards for reversal.

Court addresses three different situations in which the government fails to turn over this information:
# Prosecution uses (or fails to correct) perjured testimony: Unless the government proves beyond a reasonable doubt that it would have convicted in the absence of this testimony, reversal is required.
# general request ("all Brady material") or no request for favorable evidence: If there is any reasonable probability that the result would have been different
# specific request (Bagley situation): reasonable probabl


Court says that they'll factor everything in to the reasonable probability standard.

Primary argument of the dissent is that there is no incentive created for the prosecutor to turn information over to the defense.
* Pennsylvania v. Ritchie
Daughter reported father to CYS and police that she had been sexually abused for 4 years.

He was particularly trying to get his daughter's prior statements and those of other CYS witnesses, both from previous investigation and this one, but a PA statute restricted the release of this information.

If there hadn't been the statute, would this information have been turned over?
* Probably so, even though it might not be constitutionalloy required.

What did Ritchie argue?
* Confrontation Clause
** Too much limitation on knowledge about accusers violates this.
* Compulsory process clause
** Allows to bring witnesses in
** Compulsory process clause doesn't necessarily require state to turn over exculpatory information
** Instead, the Due Process clause requires the states to turn over exculpatory information
** Material information is required

How did the Court determine that the information could be turned over?
* Due Process
* Because there were exceptions that allowed for the information to be turned over
* As a result, in camera review is called for

How else might this be done than just leaving it in camera?
* Maybe restrict what the defense counsel can say about the information?

What does Ritchie establish:
* Distinction between confrontation as a trial right versus a pre-trial right.



Davis v. Alaska
* juvenile on probation and defense wanted to bring out that information
* the information was provided to the defense
* trial court wouldn't allow it to be used, by Alaska statute.

Here, they felt there was information, but the Court held that the state wasn't required to turn it over.

Arizona v. Youngblood (fn. b)
* Court establishes that if there's bad faith in destroying evidence, that could prove that the evidence was useful for the defense.
*
V Guilty Pleas
In the crime-control model, seen as both necessary and desireable
* 95% resolved by guilty pleas and 5% by trials -- without them, things would screech to a halt
* Why desireable? Getting the right guy; accountability

Once a guilty plea is entered, it should stay, but for exceptional circumstances shown.

The Due Process model is not quite so sure
* May be necessary, but we should surround them with safeguards
* Circumstances may cause people to plead guilty when they aren't, and we may get the wrong people
* Should probably be more process and more protection

What about the plea bargaining process that leads to pleas
* People could plead guilty without a plea bargaining system
* Typically, they come from the plea bargaining process


Why might there have been some concern about the constitutionality of plea bargaining?
* Because we've got protections against coercion in confessions, but there was nothing in place addressing how this might be coercive in plea bargaining
V Plea Bargains
* Bordenkircher v. Hayes
Uttering a forged document, punishable by 2 to 10 years.

Prosecutor offered 5 years for a guilty plea, but the prosecutor said she'd charge under the habitual offender statute (life sentence) if he turned it down.

How does he argue that it's unconstitutional?
* Violation of 14th Amendment Due Process, because prosecutors are not supposed to be vindictive
* What was the vindictiveness? Turning down the proposed deal and asserting his right to trial. He's being punished for exercising his Constitutional Rights.

Perry
* Convicted on a misdemeanor, appealed, and charged with a felony the next time.

Pearce.
* Retrial on appeal, and sentenced to a greater sentence after second conviction

Why do those cases fail here?
* All in the give-and-take of plea bargaining
*

What's the dissent arguing here?
* This is being used as a hammer because it's done privately in the plea bargaining process
* Because this is being done privately, the people don't see it happening and try to change it.

Limitation on the state
* Threats or promised can't be unjustifiable standards
* Threats against a third party might not be usable (note 8)
** Coercion with the results directed to someone else may be more difficult to face
* No proper relationship to the prosecutor's business



Brady
* After a jury trial, you could