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Administration Of Criminal Justice, SECOND HALF OF CLASS, Criminal…

- - - - not many of these cases are filed for minor intrusions
      - its wrong but usually not worth to individual hiring lawyers
    - - must be a clearly established constitutional right in order to go to trial at all
  - - - be secure in their
        
        persons,
        
        houses,
        
        papers,
        
        and effects,
      - against unreasonable searches and seizures, shall not be violated,
      - and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  - - - Investigators conduct a search when they examine something that:
        
        You actually expect will be private (subjective); and
        
        Society agrees should reasonably be expected to private (objective)
      - The subjective prong
        
        What things do you actually expect will be private? Web sites visited? Phone numbers you dial? Where you travel with GPS on your digital device?
        
        Taken literally, might not protect much
        
        BUT scholars argue this prong doesn't even get evaluated, as it can always be asserted that the subject assumed their actions would be private
      - The Objective Prong
        
        Can you base what's "reasonable" on surveys of what everyone really thinks? (empirical theory)
        
        Is that static and discoverable by courts?
        
        Could government change your expectations with public announcements?
      - REASONABLE EXPECTATION OF PRIVACY
- - - - distinction between content/ non content information gathering; here clearly non content .
    - - “Privacy is not a distinct commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
      - Justice Thurgood Marshall, dissenting
  - - - Dissent notes that use of technology only reason this is not a search; using ladder on side of fence would make this a search.
  - - - The lower courts have suggested that aggregating large amounts of data from a third party may be a search, depending upon:
        
        The revealing nature of the data captured
        
        The amount of the data captured
        
        Whether the data was disclosed to a third party automatically.
      - NOTE: Lower courts seem less interested in the number of person affected by the surveillance, the inescapability of the technology/service, or the cost.
- - - - A "practical, non-technical conception" that examines the "factual and practical considerations of everyday life."
      - In practice, a fuzzy standard few understand.
- - - - Can Warrantlessly search if:
        
        Need to prevent destruction of evidence
        
        In hot pursuit of a suspect
        
        Providing emergency assistance to prevent or aid injury (public safety)
      - No Police-Created Exigencies Can Justify a Search
        
        BUT it’s not a police-created exigency as long as officers did not violate or threaten to violate the 4th amendment to create the exigency
      - Taking BAC testing of an unconscious individual is considered an exigent circumstance in order to prevent the destruction of that evidence
    - - A Brief History of the Search Incident to a Valid Arrest Exception
        
        Weeks - can search person for fruits of crime
        
        Carroll- can search person and area in his control
        
        Agnello- search person and area in control as well as place where arrest was made
        
        Rabinowitz- place of arrest
        
        Chimel In the home, you can search area in arrestee's immediate control
        
        Maryland v Buie
        
        - In the home, can search area in arrestee’s immediate control (Chimel) AND spaces adjoining arrest where attackers might hide (Buie) – can search past immediate area IF reas. suspicion of attack
        
        note: must be place where human could launch an attack
      - 3 ZONES
        
        In public, can search arrestee’s person and containers on his person (Robinson)
        
        In a car, can search passenger compartment ONLY IF arrestee is within reaching distance at the time OR it is reasonable to believe car has evidence of the crime arrested for. (Gant)
        
        In the home, can search area in arrestee’s immediate control AND spaces adjoining arrest where attackers might hide (Buie) – can search past immediate area IF reas. suspicion of attack
      - Search incident to an arrest in a car
        
        Police Discretion in Traffic Stops
        
        Can stop a car with reasonable cause to believe there is ANY traffic violation (Whren 1996)
        
        Can arrest for ANY traffic violation, including a misdemeanor carrying no jail time (Atwater 2001)
        
        Arizona v Gant
        
        Police may search a vehicle after a recent occupant’s arrest ONLY if the arrestee is within reaching distance of the passenger compartment at the time of the search OR it is reasonable to believe that crime-related evidence is located in the vehicle.
    - - Chambers v Maroney
        
        A warrantless search of a car made at a police station is constitutional so long as there is probable cause to believe that the car contains items that the officers are entitled to seize.
      - Warrantlessly Searching a Car’s Secret Compartments
        
        ANY AREA of automobile (broadly defined) can be searched warrantlessly IF probable cause to believe contraband is in the area searched
      - What makes cars constitutionally different (Chambers)?
        
        element of mobility (creates exigency circumstances)
        
        lower expectations of privacy in an automobile (Carney)
      - So what is a “reasonable” expectation of privacy in a car?
        
        Acevedo's Holding
        
        “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”
        
        Sanders seems to be overruled; Chadwick limited to its facts
        
        BUT a person has a full expectation of privacy in a container seized outside a car
      - ANY AREA of an automobile (broadly defined) can be searched warrantlessly IF probable cause to believe contraband is in the area searched, including containers therein
      - Containers outside of a car—cannot search unless another exception, like search incident to arrest, applies
    - - Investigators can warrantlessly observe and feel things from someplace they are legally entitled to be.
      - Plain view Scalia - Arizona v Hicks
        “[A] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.”
    - - Consent Exception
        
        Investigators can warrantlessly search areas when given consent.
        
        What kind of consent?
        
        Who can give consent?
      - Schneckloth v Bustamonte
        
        The court must look at the totality of the circumstances in order to determine whether consent to a warrantless search absent probable cause was freely and voluntarily given.
      - things that would make consent involuntary
        
        implied threats
        
        explicit coercion
        
        uses of force
      - Consent Exception
        
        Consent can be limited in time and scope -- "search kitchen for next ten minutes "
        
        Investigators can warrantlessly search areas when given “voluntary” and non-conflicting consent by one with at least apparent authority, judged from an objectively reasonable perspective.
    - - Can warrantlessly search w/o probable cause IF:
        
        “special needs” make getting a warrant impracticable AND
        
        purpose is not general crime control
      - “Special Needs” Example: School Searches for Drugs
    - - Can warrantlessly search “closely regulated industries” IF
        
        -the search is reasonably restricted AND
        
        -The search is not solely for law enforcement purposes
    - - Police can warrantless search an automobile in their custody IF:
        
        The search is not for criminal investigation purposes, but just to take inventory
        
        The search follows standardized, routine police procedures established in advance
- - - - “Whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.”
    - - To execute a brief Terry stop, officers must have a reasonable, articulable suspicion that a person has committed or will soon commit a crime.
      - If the police reasonably suspect that the suspect is armed and dangerous, the police may frisk the suspect, meaning that the police will give a quick pat-down of the suspect's outer clothing.
  - - - Mendenhall's definition of "seizure" (Use when suspect doesn’t try to leave)
        
        “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”
      - Some Relevant Factors :
        
        Threatening presence of several officers
        
        Display of a weapon
        
        Some physical touching of the person
        
        Language or tone of voice indicating compliance is compelled.
  - - - IF NO, would a reasonable person have felt free to leave under the circumstances (Mendenhall)?
        
        IF NO, it’s a seizure. Constitutionality depends upon type of seizure.
      - IF YES, did officers apply physical force to the suspect with the intent to restrain (not just accidental force)?
        
        IF YES, it’s a seizure (Torres). Constitutionality depends upon type of seizure.
        
        IF NO, it’s a seizure if the suspect submits to an assertion of authority. (Hodari D.) Constitutionality depends upon type
  - - - The suspect flees AFTER officers apply physical force with the intent to restrain (Torres)
        
        Torres (2021)
        
        A suspect flees after officers apply physical force. When is she seized?
        
        A suspect is seized when officers apply physical force with the intent to restrain, even if the suspect then escapes and flees.
      - The suspect flees BEFORE officers apply any physical force (Hodari D.)
        
        Hodari D. (1991)
        
        A suspect flees before officers apply physical force. When is he “seized”?
        
        If a suspect attempts to leave before he is physically touched, it’s a seizure IF:
        
        the suspect submits to an assertion of authority
        
        AND a reasonable person would not feel free to leave (Mendenhall test)
        
        (BUT THAT’S ALWAYS TRUE when a suspect submits to an assertion of authority!)
- - - - IF NO, defendant lacks standing and evidence is admissible.
      - IF YES, ev. excluded UNLESS ANY exception to exclusionary rule
        
        Exceptions to the Exclusionary Rule
        
        Independent Source Doctrine
        
        Was there an “independent source” for the evidence, such that it is no longer the “fruit of the poisonous tree” (Murray)?
        
        If yes, evidence remains admissible.
        
        Inevitable Discovery Doctrine
        
        Was discovery of the evidence inevitable, even if there was no constitutional violation?
        
        If yes, evidence remains admissible.
        
        NOTE: Gov’t need only prove the independent source/inevitable discovery by a preponderance of the evidence (50% + a feather)
        
        Dissipation of the taint
        
        Was ev. so attenuated from the constitutional violation that it remains admissible? Important factors:
        
        Time passage b/w initially illegality and fruit
        
        Flagrancy of the illegality
        
        Intervening causes/acts of free will by D that led to fruit
        
        Good Faith Exception
        
        Did investigators act in good faith, “reasonable” belief that they had constitutional authority/valid warrant to obtain the evidence?
        
        IF YES, evidence remains admissible
- - - - IF YES, violates 5th Amend due process clause
      - IF NO, did the prosecution fail to preserve evidence that could have been exculpatory?
        
        IF YES, discovery violation IF defendant can show bad faith by the prosecution
  - - - length of the delay
      - Reasons for delay
      - Any requests defendant has made for a speedy trial
      - Any way this might prejudice the defendant
- - - - Coerced by torture
      - Coerced by an express, false promise of lenience
    - - was defendant in custody & subject to interrogation?
        
        IF YES, Did police give warnings?
        
        IF NO, 5th Amend. violation. Consider if exclusion applies.
- - - - THEN ASK was defendant in custody & subject to interrogation?
        
        IF YES, Did police give warnings?
        
        IF YES, Did D invoke or waive his rights?
  - - - IF YES, 5th amend violation UNLESS
        
        Officers reinitiate questioning properly (time lapse, fresh warnings, Qs on diff. crime under Moseley) OR
        
        D voluntarily and knowingly waived (silence works IF D knew rights, by preponderance of evidence).
  - - - Availability of the exception does not turn on the officers’ motivations
  - - - THEN ASK if warnings given before custodial interrogation.
        
        IF NO, 5th amend. violation. Consider if exclusion applies:
        
        No exclusion if questions were reasonably prompted by a concern for public safety (Quarles)
        
        No exclusion if only brief questions asked by different officers than those that later conduct full, Mirandized interrogation (Elstad/Siebert)
- - - - IF A SINGLE COURSE OF ACTION, was he placed in jeopardy more than once for it?
        
        IF YES, double jeopardy violation. Unless tried by seperate soverign
      - IF A SERIES OF ACTS, did each charge require proof of additional fact the other did not?
        
        IF NO, and D was convicted of both, double jeopardy violation unless tried by separate soverign
    - - IF YES, was retrial necessary to avoid prejudice not caused by either party (e.g. hung jury)?
        
        IF YES, no double jeopardy violation
        
        IF NO, double jeopardy violation UNLESS tried by sep. sovereign
- - - - A suspect’s Fifth and Sixth Amendment rights are violated where he has been indicted, he has invoked his right to counsel, and federal agents have deliberately elicited incriminating statements from him in the absence of his retained counsel.
  - - - IF YES, did prosecution “deliberately elicit” inculpatory statements without counsel present (includes placing agent near D and asking agent to listen)?
        
        IF YES, 6th amendment violation
- - - - each party can raise as many for cause challenges they want
  - - - D has initial burden to show a prima facie case of discrimination against a cognizable racial group in prosecution’s use of peremptories.
      - State then has burden to provide a neutral explanation for challenging those jurors.
        
        Needn’t have to rise to the level of a cause challenge.
      - Court then determines whether D has proven intentional discrimination.
  - - - IF NO, 6th amendment violation
    - - IF YES, Can the State offer a race-neutral justification for its challenges?
        
        IF YES (almost always), can defendant demonstrate purposeful discrimination?
        
        IF YES, Equal Protection Violation
- - - - Defendant charged with “breaking and entering a poolroom with the intent to commit a misdemeanor,” which itself is a felony.
  - - - IF YES, was ▲ sentenced to jail time?
        
        IF YES, 6th amendment violation.
        
        IF NO, did State provide opportunity to appeal as of right?
        
        IF YES, was ▲ provided counsel for that appeal?
        
        IF NO, Due Process violation
- - - - IF YES, was that evidence “testimonial,” e.g. made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial?
        
        IF YES, likely violates the 6th amendment’s confrontation clause
        UNLESS the “primary purpose” of the statement (from perspective of both questioner & declarant) was to allow officers/government authorities to meet an ongoing emergency.
- - - - YES According to the NY Ct of Appeals, placing stolen goods on the floor in front of the defendant’s prison cell, after the defendant asked to speak to the district attorney, was interrogation.
    - - NO According to NY Ct of Appeals, calling the defendant a liar after speaking to a witness was not interrogation because “no response was called for under the circumstances.” This was the holding even after the suspect saw the officers talk to a witness and accuse them of lying.
        SO some actions are interrogation, while some speech is not.
    - - Examine whether police “should know” their words or actions are likely to elicit an incriminating response.
- - - - An objective standard of reasonableness, judged against prevailing professional norms
      - Highly deferential, so no second-guessing counsel’s assistance after conviction or adverse sentence
      - More than one way to effectively defend a client.
    - - Even if counsel’s errors were unreasonable, must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
      - Presumed only in rare circumstances, such as actual conflict of interest
      - Burden on Defendant to prove
  - - - IF YES, 6th amendment violation
- - - - IF YES, violates 5th Amend due process clause
      - IF NO, did the prosecution fail to preserve evidence that could have been exculpatory?
        
        IF YES, discovery violation IF defendant can show bad faith by the prosecution
- - - - IF YES, was ▲ sentenced to jail time?
        
        IF YES, 6th amendment violation.
        
        IF NO, did State provide opportunity to appeal as of right?
        
        IF YES, was ▲ provided counsel for that appeal?
        
        IF NO, Due Process violation
    - - IF YES, did prosecution “deliberately elicit” inculpatory statements without counsel present (includes placing agent near D and asking agent to listen)?
        
        IF YES, 6th amendment violationUNLESS D waives (possible under Montejo)
    - - IF YES, did counsel’s deficient performance prejudice ▲?
        
        IF YES, 6th amendment violation
- - - - IF NO, 6th amendment violation
    - - IF YES, Can the State offer a race-neutral justification for its challenges?
        
        IF YES (almost always), can defendant demonstrate purposeful discrimination?
        
        IF YES, Equal Protection Violation
- - - - IF A SINGLE COURSE OF ACTION, was he placed in jeopardy more than once for it?
        
        IF YES, double jeopardy violation. Unless tried by seperate soverign
      - IF A SERIES OF ACTS, did each charge require proof of additional fact the other did not?
        
        IF NO, and D was convicted of both, double jeopardy violation unless tried by separate soverign
    - - IF YES, was retrial necessary to avoid prejudice not caused by either party (e.g. hung jury)?
        
        IF YES, no double jeopardy violation
        
        IF NO, double jeopardy violation UNLESS tried by sep. sovereign
- - - - IF YES, was that evidence “testimonial,” e.g. made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial?
        
        IF YES, likely violates the 6th amendment’s confrontation clause
        UNLESS the “primary purpose” of the statement (from perspective of both questioner & declarant) was to allow officers/government authorities to meet an ongoing emergency.
- - - - Text of the Fourth Amendment
        
        AND no Warrants shall issue, but
        upon probable cause,
      - So what is probable cause after Gates?
        
        A "practical, non-technical conception" that examines the "factual and practical considerations of everyday life."
        
        look to the reliability of the informant together with how the informant came to know the information(basis of knowledge)
      - IF NO, do any exceptions to warrant req. apply?
        
        Exigent Circumstances
        
        Can Warrantlessly search if:
        
        Need to prevent destruction of evidence
        
        In hot pursuit of a suspect
        
        Providing emergency assistance to prevent or aid injury (public safety)
        
        No Police-Created Exigencies Can Justify a Search
        
        BUT it’s not a police-created exigency as long as officers did not violate or threaten to violate the 4th amendment to create the exigency
        
        Search Incident to Valid Arrest
        
        3 ZONES
        
        In the home, can search area in arrestee’s immediate control AND spaces adjoining arrest where attackers might hide (Buie) – can search past immediate area IF reas. suspicion of attack
        
        In public, can search arrestee’s person and containers on his person in his immediate control (Robinson)
        
        In a car, can search passenger compartment ONLY IF arrestee is within reaching distance at the time OR it is reasonable to believe car has evidence of the crime arrested for. (Gant)
        
        Automobiles & Containers
        
        ANY AREA of automobile (broadly defined) can be searched warrantlessly IF probable cause to believe contraband is in the area searched, including containers therein
        
        Containers outside of a car—cannot search unless another exception, like search incident to arrest, applies
        
        Plain View/ Touch
        
        Investigators can warrantlessly observe and feel things from someplace they are legally entitled to be.
        
        Consent Exception
        
        Consent can be limited in time and scope -- "search kitchen for next ten minutes "
        
        Investigators can warrantlessly search areas when given “voluntary” and non-conflicting consent by one with at least apparent authority, judged from an objectively reasonable perspective.
        
        Special Needs Exception
        
        Can warrantlessly search w/o probable cause IF:
        
        “special needs” make getting a warrant impracticable AND
        
        purpose is not general crime control
        
        “Special Needs” Example: School Searches for Drugs
        
        Inventory Search Excepton
        
        Police can warrantless search an automobile in their custody IF:
        
        The search is not for criminal investigation purposes, but just to take inventory
        
        The search follows standardized, routine police procedures established in advance
        
        Administrative Search Exception
        
        Can warrantlessly search “closely regulated industries” IF
        
        -the search is reasonably restricted AND
        
        -The search is not solely for law enforcement purposes
        
        IF YES, CONSTITUTIONAL and no warrant needed
        
        IF NO UNCONSTITUTIONAL without warrant
      - IF YES, CONSTITUTIONAL SEARCH
      - Warrant Requirements
        
        REASONABLE PRECISION REQUIREMENT: Warrant must describe with reasonable precision the place to be searched and any items to be seized.
        
        AFFIDAVIT REQUIREMENT: Officers must submit to a magistrate an affidavit setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause.
        
        NOTE: a police officer cannot in good faith rely on a defective search warrant if:
        
        ITS OBVIOUS the warrant lacks PC
        
        The warrant is defective on its face (e.g. fails the particularity requirement)
        
        The affiant lied to or misled the magistrate; or
        
        The magistrate has wholly abandoned his judicial role
- - - - IF NO, would a reasonable person have felt free to leave under the circumstances (Mendenhall)?
        
        IF NO, it’s a seizure. Constitutionality depends upon type of seizure.
        
        if yes, not a seizure
      - IF YES, did officers apply physical force to the suspect with the intent to restrain (not just accidental force)?
        
        IF YES, it’s a seizure (Torres). Constitutionality depends upon type of seizure.
        
        IF NO, it’s a seizure if the suspect submits to an assertion of authority. (Hodari D.) Constitutionality depends upon type
    - - Some relevant factors:
        
        Threatening presence of several officers
        
        Display of a weapon
        
        Some physical touching of the person
        
        Language or tone of voice indicating compliance is compelled.
  - - - A "practical, non-technical conception" that examines the "factual and practical considerations of everyday life."
        
        look to the reliability of the informant together with how the informant came to know the information(basis of knowledge)
    - - So what is “reasonable suspicion”?
        
        Totality of circumstances Test
        
        Can be less quantity of information than probable cause.
        
        Can arise from info that is less reliable than required for probable cause.
        
        Most officers interpret as a 1-in-5 chance that a crime is afoot.*
        
        Examples of circumstances supporting reasonable suspicion (from NYPD Form UF-250)
        
        High-crime area
        
        Furtive movements
        
        Actions indicative of “casing” location
        
        Inappropriate attire—possibly concealing weapons
        
        Suspicious bulge/object
      - To execute a brief Terry stop, officers must have a reasonable, articulable suspicion that a person has committed or will soon commit a crime.
- - - - Independent Source Doctrine
        
        Was there an “independent source” for the evidence, such that it is no longer the “fruit of the poisonous tree” (Murray)?
        
        If yes, evidence remains admissible.
        
        Inevitable Discovery Doctrine
        
        Was discovery of the evidence inevitable, even if there was no constitutional violation?
        
        If yes, evidence remains admissible.
        
        Dissipation of the taint
        
        Was ev. so attenuated from the constitutional violation that it remains admissible? Important factors:
        
        Time passage b/w initially illegality and fruit
        
        Flagrancy of the illegality
        
        Intervening causes/acts of free will by D that led to fruit
        
        If yes, evidence remains admissible.
        
        Good Faith Exception
        
        Did investigators act in good faith, “reasonable” belief that they had constitutional authority/valid warrant to obtain the evidence?
        
        2 more items...
      - NOTE: Gov’t need only prove the independent source/inevitable discovery by a preponderance of the evidence (50% + a feather)
- - - - IF YES, Did police give warnings?
        
        IF YES, Did D invoke or waive his rights?
        
        IF YES, Did D unambiguously invoke (totality test)?
        
        IF invoked, 5th amend violation UNLESS
        
        Officers reinitiate questioning properly (time lapse, fresh warnings, Qs on diff. crime under Moseley) OR
        
        D voluntarily and knowingly waived (silence works IF D knew rights, by preponderance of evidence).
        
        IF waived, not 5th amend violation
        
        IF NO, 5th amend. violation. Consider if exclusion applies:
        
        No exclusion if questions were reasonably prompted by a concern for public safety (Quarles)
        
        No exclusion if only brief questions asked by different officers than those that later conduct full, Mirandized interrogation (Elstad/Siebert)