Crim Pro Investigations

Nor shall any state deprive a person of life, liberty or property without due process of law
- Owed Notice;
- Opportunity to share your side;
- An audience, etc.

Evidence seized in violation cannot be used against the defendant

Silver Platter Doctrine
- If the evidence was not excluded then the protection of the 4th amendment has no value
- Tries to deter/ punish the offender (government actor) from violating the 4th amendment

Katz: Reasonable Expectations Test
1. Person exhibited an actual (subjective) expectation; &
2. Expectation society deems to be reasonable (objective)
***Applies to a peron's privacy and property***
OR physical instrusion

Home
Curtilage
Car
Containers
Sense-enhancing technology
Wiretapping private conversations within protected area

1. proximity of area to home
2. whether within enclosure surrounding home
3. use to which area is put
4. steps taken by resident to protect view of passerby

Yes this action is a physical intrusion (Jones)

Dog sniff
Open-fields
Sense-enhancing technology in general public use
Information voluntarily given to 3rd party (ex: false friend who is a government informant; undercover agent, etc)
Things easily seen from public viewing space (ex: aerial surveillance, from street, garbage)

1. When government obtains information by physically intruding of persons, houses, papers, or effects; OR
2. When government conduct interferes with an actual (subjective) and reasonable (objective) expectation to privacy

A person is seized if, based upon the totality of the circumstances, a reasonable person would have felt they could not leave

Meaningful interference with an individual's possessory interest in that property

anything they (law enforcement) have probable cause to believe is criminal evidence
- Contraband
- Fruits of a crime
- Instrumentalities used in commission of an offence
- Mere evidence
- People

evidence not lawfully possessed (child porn, etc)

money earned or stolen in the crime

weapons, automobile for getway, etc

- Items of value to police solely because it will help in apprehension or conviction of a person for an offense
- Limited what it'll provide, but connects suspect to crime

1. person submits to a show of authority to police, or
2. the police exert physical force upon the person in effectuating the arrest

If police have a reasonable suspicion based upon articulable facts to believe criminal activitu is afoot, police may seize a person and, if the police have reasonable suspicion person is armed, subject person to a frisk for weapons

Will be an arrest based on the totality of the circumstances test, based on:
1. officer diligence
2. not brief and investigatory in nature; and
3. whether officer moves the suspect

A search or seizure conducted in the absence of PC is considered an unreasonable one
PC is NOT more than 50%-- lower threshold than that, but not a numerical value

Facts or circumstances within officer's knowledge and have reasonably trustworthy information are sufficient reason to believe an offense has been or is being committed

Facts or circumstances within an officer's knowledge and have reasonable trustworthy information that is sufficient reason to believe evidence subject to seizure will be found in place being searched

a neutral and detached magistrate and not by an officer in often competitive enterprise of fettering out crime
- conclusory assertion of the affiant is given no weight (Nathanson Rule)

Magistrate must have information from which he can reach his own conclusion to
1. Credibility of source (integrity prong)
2. Basis of source's conclusion (logic prong)

Magistrate make practical, common-sense decision, given all circumstances set forth in affidavit before him
• Veracity and basis of knowledge of persons supplying hearsay information
• That there’s fair probability that contraband/evidence of crime will be found
The deficiency in one may be compensated for by a strong showing as to the other or by some other indication of reliability.

Where D believes warrant information was falsified
D must
1. file a franks motion: make a substantial preliminary showing by preponderance of evidence that the false statement knowing and intentionally, or with reckless disregard, was included by the affiant

Look at affidavit to see if there is still enough to find probable cause without the false statement
if there is = no relief

Barring exigent circumstances, there is a "firm line" at the entrance of the home that may not be crossed without a warrant
- Police are required to have warrant to enter home
- Even with a warrant, entry to the home is only reasonable where the police have reason to believe the suspect is inside

There IS a search warrant requirment;
- Searches conducted w/o a warrant are per se unreasonable unless there is a specific narrow exception to the search warrant requirment
- PC still the standard to initiate a search

Reasonableness
- warrants are a necessary tool of reasonableness, but they are not necessarily important
- PC still the standard to initiate a search

1. PC to believe a person committed a crime or evidence of the crime will be found in a place
2. Supported by oath or affirmation
3. Particularity
(Must describe things to be searched and seized; no general warrants; nothing shall be left to the discretion of the officer executing the warrant)
4. Neutral and detached magistrate

- a person waiting to get a warrant (reasonableness tied to the time)
- an innocent person's liberty to restrict the access to the area when searching

force is still allowed (can knock down doors if, under the circumstances, would be dangerous, futile, or would undermine the investigation)

No, cannot

Police can search the entire location and can search anything that could hold the item that is specificed in the search warrant

Exigent Circumstances
Consent
Car Searches
Search Incident to Arrest
Plain View

A warrantless intrusion may be justified by
- Hot pursuit of fleeing felon
- Imminent destruction of evidence
- Need to prevent escape
- Risk of danger to police or others
- Probable cause is still needed

Exigency still applies even if the police create the exigency so long as it doesn't violate the 4th amendment

Must be voluntary and not coerced. Burden on the government to prove voluntary consent
Totality of ALL the circumstances standard

1. Time of day
2. Use of Force
3. How many officers
4. Mindset and mental capacity of the subject
5. Prior interactions with police
6. Education

This is not consent (bc you do not have a choice when police say they have a search warrant)

A co-occupant has authority to consent on behalf of another occupant, unless a physically-present co-occupant refuses, or if unreasonable to believe person had authority to consent

Yes can always be withdrawn

Consent can be limited to areas (you can search my bedroom and kitchen but not my basement)

If there is imminent injury to others, police may search a person or a constitutionally protected place without a warrant

If a search is incident to an arrest within the home, police may search a person and "immediate grabbable area"

If a search is incident to an arrest of a recent car occupant that is not secured, police may search person and immediate grabbale area

If search is incident to an arrest of a recent car occupant that is secured, police may search the “passenger compartment” of the vehicle subject to PC to believe a seizable item will be found.

(1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or
(2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle

1. Deemed automobile on public road;
2. PC; and
3. Occupants alerted and may use moveable nature of car to avoid detection of evidence.

If police have PC to search a car, w/o a warrant, they can search the car and any container within it

Police may search cars and the containers within it where they have PC to believe contraband or evidence is contained
(cars that coincidentally have containers OR containers coincidentally in cars)

Police officers with PC to search a car may inspect any passengers’ belongings found in the car that are capable of concealing the object of the search.

Items police can easily see, can be seized
- if an article is already in plain view, neither its observation not its seizure would involve any invasion of privacy
(mindset of officer doesn't matter)

1. Officer did not violate 4th amendment in arriving at location from which evidence is in plain view (because search warrant or exception)
2. Incriminating character must be immediately apparent; (probable cause is the threshold)
3. Officer must have lawful right to access the object itself
4. (need not be inadvertent)

No PC requirment
Typically, an inspector but still permissible if carried out by the police

Reasonableness determined by balancing
1. state's interest
2. effectiveness
3. level of privacy intrusion

unreasonable if police use any discretion in who they stop

Are normally okay where purpose is to protect and people have a choice

An officer can stop and frisk a person where a reasonable officer would believe search necessary to discover a weapon that would endanger officer in pursuit of his duty.

1. Whether officer’s action was justified at its inception.
• Articulable facts, taken w/ rational inference from those facts, warrant intrusion.
2. Whether action was reasonably related in scope to the circumstances which justified the inference in the first place

he has ‘seized’ that person

Look at the Totality of the Circumstances
• Initiating prosecution (arrest); OR
• Merely investigating?
• Articulable concern
• Spectrum, depends on level of intrusion
(Police have full authority to detain a person & seize during Terry stop)

To evaluate the totality of the circumstances – Would a reasonable person feel free to leave?

A person is seized only if, in view of all circumstances surrounding the incidence, a reasonable person would have believed he was not free to leave.
Factors:
• Threatening presence of several officers
• Display of a weapon
• Physical touching
• Language/tone of voice
• Length of investigation
• Anything else

Only a person whose rights were violated by the search or seizure (must have standing)

No, merely being somewhere legitimately, does not confer privacy interest enough to establish standing

Yes, because they have legitimate expectation of privacy in his host's home

Just a house guest (not a overnight one) generally do NOT enjoy the same expectation of privacy in someone else's home

4th amendment violations matter because evidence will be excluded
a. applies to federal and state governments

No
Rationale: there is no real benefit to deterring, if cannot be used at trial

Government cannot violate the 4th Amendment & use the fruits of such unlawful conduct to secure a conviction.
Nor can the government make indirect use of such evidence for its case, or support a conviction on evidence obtained through the leads from the unlawfully obtained evidence.

Allows the introduction of evidence discovered during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality
(requries there must be an independent source)

Evidence that is FOPT will still be admissible if the prosecution can establish that it would have inevitably and legally obtained evidence anyway.
- What would have happened, but-for this?
- Not enough for police to say would have done something, but that they were actually engaged in something.

Ask: Is it enough removed so that the cost benefit analysis determines that it may be used anyways?

1. Length of time elapsed
2. Flagrancy of initial misconduct
3. Intervening causes for seizing fruit
4. Whether D’s own free will resulted in seizure of fruit

BOTH physical and verbal evidence
a. Tangible and intangible items
b. Courts reluctant to suppress/exclude live witness testimony, if offering on her free will.

When police act under a warrant that is invalid or lack of PC, the exclusionary rule does NOT apply if:
• Police acted in good faith; AND
• Objectively reasonable reliance on the subsequently invalidated search warrant

1. Warrant based on knowingly or recklessly false information
2. When magistrate abandoned judicial role (is no longer neutral and detached) [magistrate cannot act as a rubber stamp]
3. When warrant affidavit is so lacking in PC that it would be unreasonable to rely on a resulting warrant
4. When the warrant on its face is clearly deficient (not particular enough RE: person/place)

1. Police conduct is sufficiently deliberate that exclusion can meaningfully deter AND the degree of deterrence is worth the cost of exclusion
2. Can deter deliberate, reckless, or grossly negligent conduct
3. Can deter systemic negligence
***It is more difficult to see negligence meeting these criteria

BOTH the officer and the police department (law enforcement, generally)

No Person shall...be deprived of life, liberty, or property without due process of law

Confessions must be made freely and voluntarily
A. Tortured information cannot be admitted

amounts to the deprivation of life or liberty without due process of law

1. Morally wrong to torture someone into a confession and later use that confession against them at trial;
2. Unreliable and ineffective confessions – must/forced to fit the story with the evidence, and must comport with what the deputies want or else more torture.

the failire to observe that fundamental fairness essential to the very concept of justice

Suspect’s will cannot be overborne
Prior considerations (hyper fact-specific):
1. Foreign born
2. Age and physical stature of D
3. Education
4. Mental being – understanding & emotional status
5. Answering leading questions (not narrative)
6. Many questioners
7. Period of questioning
8. Time of day (night or day)
9. Exhaustion

No personal shall be compelled in any criminal case to be a witness against himself

A Warning
1. make him aware of not only the privilege, but also
2. make him aware of the consequences of foregoing it
Waiver must be knowing (aware of consequences) and voluntary (absent of coercion)

ER is created if there is 1. custodial interrogation and 2. Miranda warnings don't recede the incriminating statements

1. they still need to be read their rights so that police are aware they know and because it's required

Yes, but must be knowing and intelligent waiver
Burden of proof on the government to prove waiver

NOT admissible unless the government demonstrates procedural safegaurds were following
a. does not matter what level of offense it is
b. traffic stops do NOT require Miranda rights

Irrefutable presumption of complusion
(if no interrogation, Miranda doesn't come into play)

Must really convey to the suspect their rights

During an interrogation when suspect is in custody or otherwise deprived of freedom in a significant way

Whether reasonable person would believe they would have the freedom to terminate questioning and go
(can be "in custody" even if at home, work, etc.)
look at totality of the circumstances

1. Terry Stop
2. A consensual encounter
3. Traffic Stops

1. Questions; OR
2. Functional Equivalent
a. words or actions on the part of the officer(s) that they should have known were likely to elicit an incriminating response

1. Booking questions are NOT covered by Miranda
a. asking basis questions like name, address, etc
b. must be normal scope of routine booking
2. Public Safety Exception (officer safety too)
a. objectively reasonable need to protect the safety of the public or police at that time?

Protect 5th amendment privilege vs. Cost: Lost convictions + harm to public safety
Cost outweighs the protection

A suspect must do so unambiguously

warnings were given and the suspect eventually made a suspect
Prosecution must prove waiver by showing, preponderance of evidence, that waiver was:
1. Voluntary (free and deliberate choice)
2. Knowing (full awareness of the right to remain silent and the consequence of waiving that right)

NOT sufficient to establish waiver

Waiver Presumed

CANNOT waive right based on police-initiated convo; CANNOT be subject to further interrogation until counsel provided UNLESS he initiates communication (not the police)