2.1	Basic test from Katz: 1) manifested actual (subjective) expectation of privacy; and 2) expectation is one that society is prepared to recognize as reasonable.

2.2	What lessens protection of privacy?

2.2.1

Exposure to third parties

2.2.1.1

Greenwood: leaving trash bags at curb

2.2.1.2

White: electronic recording of conversation by informant

2.2.1.3

Hoffa: confidant reporting back to police

2.2.2

Public visibility

2.2.2.1

Florida v. Riley: pot seen in greenhouse from legally traveled airway

2.2.2.2

Oliver: Open fields doctrine: no expectation in open fields, because that's where you drive your tractor

2.3	What limitations are there?

2.3.1

Sensory-enhancement devices: Kyllo (thermal imaging), Karo (beeper in barrel, relied upon by police for tracking after visuals lost -- however, in Knotts, where police used beeper to help visually track, that's acceptable) (When did the violation of Fourth Amendment protections actually occur? When they started using the beeper to monitor the barrel)

2.3.2

Expectataions for non-residents limited to social guests(Minnesota v. Carter)

2.3.2.1

Overnight guests do have an expectation of privacy (Olsen)

2.3.2.2

Someone riding as a passenger in a car does not (Rakas)

3.1	Standard from Aquilar (no longer current) for a search warrant:

3.1.1

set forth the "underlying circumstances" necessaryt o enable a magistrate to independently judge the validity of the conclusions; and

3.1.2

evidence of the reliability of the information

3.2	Is the informant credible? (Draper: description of man carrying drugs on train; Spinelli: insufficient underlying circumstances)

3.2.1

What makes the informant credible?

3.2.2

How does the informant know this information?

3.3	Now, Totality of the Circumstances (Gates) based on Aguilar criteria

3.3.1

Information need not be entirely accurate if credibility is achieved.

3.4	Probable cause to arrest multiple people for one act?

3.4.1

Pringle: 3 people in car with cocaine found; none admitted or pointed fingers. Probable cause to arrest all three because it could have been any one.

3.4.2

Ybarra: No probable cause to search patron of bar just because there is probable cause that the bartender possesses drugs.

3.4.3

Di Re: Exception to Pringle. Can't arrest a guy just for being around the act when someone else is given up.

4.1	Requirements: 1) probable cause 2) supported by oath 3) particularly describing the place to be searched and the persons or things to be seized.

4.2	What if the police search the wrong place? It's okay if: (Garrison)

4.2.1

The warrant was valid

4.2.2

The warrant was executed reasonably

4.3	What if the warrant doesn't properly specify the power the police are trying to exercise? (Groh v. Ramirez):

4.3.1

Powers are no good.

4.4	Are police executing a warrant required to knock-and-announce before entering to search? Yes. (Wilson, Richards)

4.4.1

What's required to no-knock?

4.4.1.1

knocking and announcing, under these circumstnaces, would be dangerous or futile; or

4.4.1.2

that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.

4.5

5.1	Arrests may be made by officers who witness a crime

5.1.1

An officer not statutorily permitted to arrest on probable cause need not go to a magistrate to get a warrant if he witnesses the crime. (Watson)

5.2	Even on pre-arrest determination of probable cause, after arrest, prompt action must be taken with a magistrate to justify further detention (Gerstein)

5.3	Probable cause must be shown promptly after arrest (48 hours after detention too long) (McLaughlin)

5.4	If police violate McLaughlin, that will only lead to consideration of what remedy should be, but won't lead to automatic dismissal of charges (Powell v. Nevada)

5.5	Arrest warrant not sufficient to enter a private home to arrest non-occupant. (Can't make arrest warrant a general warrant -- cops could search anywhere for someone they were out to arrest)(Payton)

5.5.1

Arrest warrant may be sufficient to go into someone's house and arrest, but it's not sufficient to go in and search (Steagald)

6.1	Type of crime doesn't matter; any custodial arrest allows for search (U.S. v. Robinson, Atwater v. Lago Vista)

6.1.1

Unreasonable to expect officers to consider individual arrests

6.1.2

Rule: 1) where a police officer has probable cause to believe even a very minro criminal offense has occurred in his presence, the officer is permitted under the Fourth Amendment to make a full custodial arrst; and 2) under the circumstances in Atwater, the driver's arrest was fine.

6.2	State of mind of police officer not relevant (custodial arrest after traffic stop allowed search that found drugs) (Whren v. United States)

7.1	Search Incident to Arrest

7.1.1

Police have general authority to search person incident to arrest, rationale being to search for weapons and preserve evidence.

7.1.2

Police may not search home incident to arrest of one of the residents, but for the "wingspan" of the person (Chimel)

7.1.2.1

Again: search for weapons, prevent destruction of evidence, prevent escape

7.1.3

Police may not search a person's house incident to an arrest outside the house. (Vale)

7.1.3.1

However, if police observe illegal activity to provide probable cause for arrest outside, they may arrest occupants and secure house for 19 hours (a "reasonable time") while getting a warrant. (securing from within no greater possessory intrusion than staking out the perimeter) (Segura)

7.1.3.2

Police may enter, observe, and secure a home on probable cause if 1) probable cause; 2) good reason to fear destruction of evidence before they could return with a warrant; 3) police exercised restraint lesser than "warrantless search"; and 4) imposed for a limited time period, here, 2 hours. (McArthur)

7.1.3.3

Police may not be able to enter without a warrant to prevent loss of "BAC" evidence, punishable by light restrictions.

7.2	No warrant required when searching a vehicle, even a motor home. vehicles are viewed differently from residences because of "ready mobility"; lesser expectation of privacy; and heavy regulation. (Carney)

7.3	Search of a footlocker, however, would require a warrant, even though it's mobile, because there's a greater expectation of privacy, you can't see into it, and it's not heavily regulated. (Chadwick)

7.4	General rule: Probable cause allows for search of any vehicle and any containers within.

7.5	No exigency required for warrantless search of car (Maryland v. Dyson)

7.6	Where the car is the contraband, car may be seized without a warrant on probable cause. (Florida v. White)

7.7	Under "recent occupant theory", police may search car (wingspan of defendant) even after arrest and placing him in back of squad car, under the theory that if police had to leave defendant in car, they would, which would put both in more danger. (Thornton v. United States)

7.7.1

In Belton, police searched jacket on front seat and found drugs while defendant was still in car.

7.8	Citation-only arrests are not sufficient to allow for a search, despite state statute authorizing it. (Citations are brief, and there's no prolonged contact justifying searches.) (Knowles v. Iowa)

7.9	items put into trunk fall under car exception and may be search on probable cause (Acevedo)

7.10	Items belonging to third parties (such as purses) may be searched when probable cause allows searching of a vehicle. (Wyoming v. Houghton)

7.11	Where police have uniform policies to inventory personal effects of either jailees or of impounded vehicles, not unreasonable searches to do without warrants. (Bertine)

8.1	Where an officer can provide specific and articulable facts (that the person is dangerous) that reasonably warrant the intrusion, stop-and-frisk is not an arrest or seizure, and as a result, Fourth Amendment doesn't apply. (Terry)

8.1.1

Why? Situation is unsuited to getting a warrant.

8.1.2

Officer must provide articulable facts so that the action can withstand after-the-fact review.

8.2

Here, where there is nothing but an anonymous tip to give rise to a "reasonable suspicion" of a crime (people with concealed guns), no articulable facts exist for a police officer to stop-and-frisk. Florida-suggested firearms expection resoundly rejected because of probability of people calling in tips to get people. Here, we needed fewer facts to back up informant than in Gates, but more than we had. (Florida v. J.L.)

8.3	Unprovoked flight in a high-crime area is sufficient to raise a reasonable suspicion. (Illinois v. Wardlow)

8.4	Apparent drug courier stopped at airport. Three ways to get into his luggage: warrant (probable cause), exigent circumstances (probable cause), consent. (Florida v. Royer)

8.4.1

No Fourth Amendment violation to ask for ID and ticket; keeping ticket and ID, however, makes it a detention, and can't be detained without a warrant.

8.5	Reasonable suspicion is insufficient to justify custodial interrogation (Dunaway v. NY)

8.6	Investigative detention just for fingerprints may be permissible, but it must be temporary and take no longer than needed for the purpose of the stop and must use the least intrusive investigatory methods possible. (Davis v. Mississippi)

8.7	No need for police to warn passengers that they are not required to cooperate before commencing a suspicionless search of a bus. (Drayton)

8.8	INS agents at door of factory not a reasonable threat of detention. (Delgado)

8.9	If person flees, police may then have reasonable suspicion. (Hodari D)

8.10	Detention of 90 minutes is too long to remain a detention.(Place)

8.10.1

Seizure of property from Friday to Monday too long without: 1) informing of the length of the seizure; 2) where they would be transported; and 3) making arrangements for returning them. An argument was made that seizure of property is absolute, as they are dispossessed, and that Terry shouldn't apply here.

8.10.2

Holding bags short-term so that a dog can sniff them is okay, but when they're passed off to a third party, that is not.

9.1	Government must show a rational regulatory scheme for inspection of buildings (Camara)

9.1.1

Balancing: 1) does the practice at issue have "a long history of judicial and public acceptance"; 2) is it essential to achieve "acceptable results"; and 3) does it involve a "relatively limited invasion of priacy."

9.2	Stops at checkpoints must be for rational regulatory schemes, not for general law enforcement purposes. (Indianapolis v. Edmond)

9.3	Reasonable suspicion of a rule violation, not reasonable supicion of a broken law, allows for a search by a school official, under the assumption that there is a compelling state interest in maintaining a workable educational environment. (New Jersey v. TLO)

9.4	Generalized administrative testing of a group is acceptable (Earls)

9.4.1

No individualized suspicion

9.4.2

Balance governmental purpose against level of instrusiveness

9.4.3

Regulations must be set in advance

10.1	Primary purpose: deter unreasonable search and seizures. Additionally: judicial integrity (judiciary not condoning unacceptable police action) and assuring the people that the the government won't profit from unlawful conduct.

10.2	No exclusion where officer acted with reasonable reliance on a search warrant issued by a neutral and detached magistrate, but eventually found lacking in probably cause. (Leon)

10.3	Applies only in the criminal trial context (PA Bd. v. Scott)

10.4	Does not apply to: parole hearings (especially where rights to privacy waived), grand jury proceedings (due to the nature of the proceedings), civil tax proceedings, or deportation hearings (rule is incompatible with the civil, administrative nature of the hearings.)

10.5	silver platter doctrine: evidence illeglly obtained by state authorities may not be used in federal trials

11.1	Valid and voluntary consent alleviates need for search warrant (totality of circumstances)

11.1.1

Was defendant told he could refuse? Where did the request occur (was it as a station? on the street?) Did the officer have a gun drawn? How many officers were present? Were they in uniform?

11.2	Defendant need not have been informed that he was not required to consent. (Bustamonte)

11.2.1

What was the defendant's state of mind? What is the defendant's experience with law enforcement?

11.3	Consent by third parties

11.3.1

Actual authority: roommates

11.3.2

Reasonable belief of common authority okay. (former girlfriend with key consents, though she had moved out a month prior. Illinois v. Rodriguez)

11.3.3

Hotel clerk does not have reasonable "apparent authority" to consent.

12.1	Any person subject to imprisonment (even for a suspended sentence) has a 6th Amendment right to appointed counsel. (Gideon, Shelton)

13.1	Coerced confessions "offend the community's sense of fair play and decency" and violate the 14th Amendment

13.2	Admissions of coerced confessions not necessarily not harmless error; instead, as with other trial error, to be considered by the courts to determine whether or not the admissions were harmless.

13.3	Inquisitorial questioning (such as 36-hours straight, without sleep or food) violates the 14th Amendment (Ashcraft)

13.4	5 straight days of long-term questioning is coercive. (Watts v. Indiana)

14.1	State must show an intentional abandonment of this right. Talking to police after a Christian burial speech during transportation -- at which attorney's request to ride along was refused -- was not a waiver of counsel. (Brewer v. Williams)

14.2	Prisoner acting just to "keep his ears open" to report on cellmate not the state acting to interrogate and not a violation of Massiah. (Kuhlman v. Wilson)

14.2.1

Had the cellmate solicited information, that would be a violation (U.S. v. Henry)

15.1	Applies Fifth Amendment protections in the face of inherently coercive custodial interrogation.

15.1.1

Decided in part to create simplicity in review of confession cases. The rights were waived or they weren't.

15.2	Miranda requires: custody and interrogation, and an affirmative waiver of rights (with burden of proof on the state.)

15.3	Was the defendant in custody?

15.3.1

Not where defendant first confessed at his home, because there is not the same coercive atmosphere as at the station. (Elstad)

15.3.2

Custody is determined on the basis of a reasonable, objective person; for this standard under Miranda, age and experience is not considered, such that a 17.5 year-old brought in by his parents is not in custody. (Yarborough v. Alvarado)

15.4	Was the defendant interrogated?

15.4.1

Actual interrogation or functional equivalent is an interrogation, where functional equivalent is "words or actions of police which police know or reasonably should know are likely to elicit a criminal response." (Innis)

15.4.1.1

Police were just chatting with each other about the risk of a child finding a gun while in the car with the defendant, who then led them to the gun.

15.4.2

Prisoner not "interrogated" when police agent in prison strikes up a conversation. Prisoner can't be coerced into confessing when he doesn't know the agent is a cop, and Miranda is about preventing coercive interrogations. (Illinois v. Perkins.)

15.5	Once counsel is requested, cops may not return later to try to get him to talk. Nor can they re-engage him after he's spoken with his attorney. Even about a different offense. (Minnick, Edwards)

15.6	Equivocal statements of asserting right to counsel ("maybe I should talk to a lawyer") do not require halt to interrogation. (Davis v. United States)

15.7	Exercising 6th Amendment right to counsel at a bail hearing does not invoke 5th Amendment right to counsel for other offenses, because the 6th Amendment right to counsel is offense-specific. (Michigan v. Jackson)

15.7.1

6th Amendment right to counsel does apply to those that would pass the Blockburger test. (Texas v. Cobb)

15.7.2

Even where crimes are factually related, it's okay to try to get a Miranda waiver. (Texas v. Cobb)

15.8	Miranda not absolutely required where a public safety exception, such as locating a gun, may be necessary. (Quarles)

15.9	Non-testimonial evidence discovered through non-Mirandized interrogation (questioning suspect about handgun in home after arresting him outside) is not excluded. (Patane)

15.9.1

Oddity is that volunteering information to police is admissible, but an attempt to search house incident to arrest would leave evidence inadmissible, which seems to discourage cooperation.

15.10

Two-phase questioning (first without Miranda, Mirandizing and re-interrogating with confession) violates Miranda. (Missouri v. Siebert)

15.10.1

Elstad approach: if first was voluntary, Miranda warnings are presumed to make the second admissible. This is effectively what the court tossed.

15.10.2

Plurality: Mid-stream warnings aren't as effective, because people will think their gooses are already cooked.

15.10.3

Kennedy: If no bad faith in first interrogation, then use Elstad approach

15.10.4

Breyer: Tainted fruit.

15.11

State's can't take away Miranda, even though it's not a Constitutional rule, because the protections are Constitutionally mandated.

15.12

Where Miranda warnings were not given and defendant was tortured, no 5th Amendment violation because testimony not used at trial. May be a 14th amendment claim as a due process violation. 5th and 14th Amendments can serve different purposes. (Chavez v. Martinez.)

15.13

Active police measures to keep attorney away from client while police transport him and interrogate him (using knowledge about the guy's religious nature) constituted interrogation after invoking his right to counsel. (Brewer v. Williams)

15.14

Putting an infomrant in the cell with an arraigned, represented defendant is okay, because he wasn't questioning, just listening, and at most nudging along the conversation. (Kuhlman v. Wilson)

15.15

Keeping attorney away from suspect who had affirmatively waived his rights is not a violation of Miranda. (Moran v. Burbine)

16.1	Distinctions between a search warrant and a subpoena

16.1.1

Subpoenas don't require any showing before being issued

16.1.2

Subpoenas can be used against a third-party

16.1.3

possibility of a person subpoenaed to testify against himself.

16.2	Forced "testimony" from papers due to a subpoena duces tecum may violate the 5th Amendment. (Boyd v. United States)

16.3	A Search for documents is fine. (Andresen v. Maryland)

16.4	Corporate documents are not protected by the 5th Amendment, because the 5th doesn't apply to corporations. (Hale v. Henkel)

16.4.1

Subpoena must be "sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdened." (See v. City of Seattle)

16.5

Being forced to appear to give a voice exemplar is not a 4th Amendment violation (not a seizure, as appearing before grand juries is a civic duty), and giving a voice exemplar is not a 5th Amendment violation, because disclosure of physical characteristics is not testimonial, nor is there an expectation of privacy. (Dionosio)

17.1	No requirement to be notified that one is a target of a grand jury before testifying (U.S. v. Washington)

17.2	An individual who wants to claim a 5th Amendment privilege, especially for a grand jury, need not be informed of that right and must claim it on their own. (Mandujano)

17.3	Fifth Amendment prevents person from testifying against themselves; it does not prevent having to testify about items a person doesn't want to testify to under immunity. (Kastigar)

17.4	If the government uses evidence against someone who had an immunity agreement, the government must present proof that they didn't get their evidence based on the immunized testimony. No derivative findings based on immunized testimony.(Kastigar)

17.5	No 5th Amendment right for private papers when those papers are held by a third party (such as an attorney or accountant) (U.S. v. Fisher)

17.6	Providing an inventory of incriminating documents is equivalent to providing testimony, and as such, derivatives may not be used. (U.S. v Hubbell)

18.1	Only requirement is to turn over material favorable evidence.

18.2	What happens when government fails to turn over such evidence? 3 categories:

18.2.1

Prosecution uses or fails to correct perjured testimony.

18.2.1.1

Conviction will be reversed if there is a reasonable likelihood that the false evidence affected the results (Harmless error standard)

18.2.2

Prosecution fails to turn over documents fulfilling a specific request

18.2.2.1

Reversal if there is a reasonable probability that the result would have been different.

18.2.3

Prosecution fails to turn over documents fulfilling a general request? Same as above.

18.3	Where evidence has been lost or destroyed, reversal only if there was bad faith and a plausible showing that the evidence would probably have resulted in a different outcome. (Arizona v. Youngblood)

18.3.1

Bad faith could be proof that the evidence would have been useful for the defense.

18.4

Where state statute restricts turning over evidence (such as interviews with child abuse witnesses, or psychological reports on the accusing children), due process requires that where exceptions exist for the material to be turned over, an in camera review for materiality is required. (PA v. Ritchie)

19.1	95% of trials decided by pleas; only 5% go to trial.

19.2	Plea Bargains

19.2.1

State can't make threats based on unjustifiable standards; state can't make threats against a third-party (usch as a family member); state can't make threats that have no proper relationship to the prosecutor's business. (Bordenkircher)

19.2.1.1

However, the prosecutor can threaten to charge under an aggravating statute if it applies to encourage a plea.

19.2.2

Where a defendant pleads guilty to avoid going to trial, risking the death penalty, there iss till the "mutuality of advantage" for the defendant, who still got to take death off the table. (Brady)

19.2.3

Prosecution must stick to its agreement about what it will recommend at sentencing (Santobello)

19.2.3.1

Who decides the remedy (specific performance or withdraw and go to trial) in a breach? The Court

19.2.4

Contract Law doesn't govern plea bargaining (no offer and acceptance before actual plea in court. Prosecutor can rectify a mistake made in offering a plea.) (Mabry v. Johnson)

19.2.5

Guilty pleas waive legal challenges but where the defendant was not competently represented when entering the plea. (Mabry)

19.2.6

Prosecution need only carry through with what it promises, it does not need to do so enthusiastically. (Prosecutor confirmed that they recommend probation, though they left it out of probation report. They were not enthusiastically pushing for probation in front of the judge.) (Benchimol)

19.2.7

Prosecution does not have to provide impeachment information about witnesses during plea bargaining (especially in fast-track processes) (U.S. v. Ruiz)

19.3	Requisites of a Valid Plea

19.3.1

Must be a written record of the judge advising defendant of the rights the guilty pleader is waiving: 1) self-incrimination; 2) trial by jury; and 3) confront witnesses (Boykin)

19.3.2

Defendant must be advised of the elements of the crime he's pleading guilty to. (Henderson v. Morgan)

19.3.2.1

Defendant was "simple"

19.3.2.2

Usually assumed that competent counsel would advise client of such.

19.3.3

Guilty pleas accepted even when defendant maintains innocence. (Alford)

20.1	Right to Jury Trial

20.1.1

Purposes:

20.1.1.1

Protect against overzealous prosecutor

20.1.1.2

Protect against a compliant judge (doesn't act as a separate judicial force)

20.1.2

Must include enough members to:

20.1.2.1

Allow for commonsense judgment of laypersons

20.1.2.2

Involvement of community

20.1.2.3

Shared responsibility for group decisions

20.1.3

No right to a jury trial for a petty crime. (Duncan)

20.1.4

One-year sentence not petty. (Baldwin)

20.1.4.1

Must be legislatively determined

20.1.5

6 months, 48-hour mandatory community service, 90-day loss of license (concurrent) not sufficient to be non-petty. (Blanton)

20.1.6

If there's no legislatively determined maximum, there's no legislative determination of non-petty offenses. (Codispoti)

20.1.7

Numerous petty offenses need not be aggregated when making determination of right. (Lewis v. United States)

20.1.8

How many does it take?

20.1.8.1

9 out of 12 is okay (Johnson v. Louisiana)