Professional Documents
Culture Documents
Constitutional Criminal Procedure
Constitutional Criminal Procedure
6th Amendment right of jury applies to all non-petty criminal trials (state and fed)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated and no warrants shall issue, but upon probably cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized
Police looking for bomb suspect at Mapps house without warrant; Mapp calls attorney for help
Police barge in later; Mapp asks for the warrant, takes it and hides in her bra, police grapple and take it back
(probably not a real warrant; they did not introduce the warrant)
o Presence of a warrant changes the analysis
o Burden on the State if unreasonable search without a warrant
o D must show unreasonableness of search if there is a warrant
Primary goal: how much deterrence will be get for extending this rule
State action
o Private party searches do not implicate 4th Amendment absent agency relationship
o Need law enforcement (state/fed gov actor)
US v. Jacobsen (1984) p. 38
o 4th amendment no applicable when police search goes no further than search already conducted by
private party
Regardless of whether it was reasonable, tort action, etc. does not mean you have a 4 th
amendment claim; dont have exclusionary rule remedy
o FedEx workers (private carrier) found cocaine in package, rewrapped package, and alerted DEA of
the issues
Conclusion: no 4th amendment applicability b/c the search of the gov actor did not go
further than the private party actors
Even though DEA did field test to make sure it was cocaine that FedEx did not
B/c TX extends to the action of law enforcement officer or other person, evidence
illegally obtained by private persons is subject to exclusion under TX law even though 4 th
amendment not applicable
Private individuals can discover and may still give claim to suppress evidence
Sufficient connection to US
When case went to trial, ruling of statute being unconstitutional came out
o Krull:
Belton case: Officer may have automatic search if probable cause on person/immediate
area of the person when threat of an officer in automobile
Gant: fear officers would use traffic arrests to make searches and seizures without
probable cause
o Davis: police apply Belton and found firearm during traffic offense
Officer following law as it existed at the time, but changed by the time case went to trial
Inaccurate information provided by non-law enforcement agency [Evans]
o Court moves away from judicial/legislative statutes
Inaccurate police info (unless systematically flawed) [Herring]
o Computer error done by police department, not court
o
Exclusionary rule if police officer reasonably believes that probable cause exists or that law allows
warrantless search but the officer is wrong and there is no reliance on a statute warrant, prior clear
precedent
o Police just has to be reasonable, even if mistaken
Traffic stop of car with only one working brake light; D consented to car search, which had cocaine
Appellate (state): reversed denial of suppression motion holding that relevant code requiring that cars be
equipped with a stop lamp means that a single functioning lamp suffices
No unreasonable search/seizure when it is based upon [officers own] reasonable mistake of law
The vehicle code requiring a stop lamp also provides that the lamp may be incorporated into a unit with 1 or
more other rear lamps and that all lamps must be in good working order
o Although the State Court of Appeals held that rear lamps do not include brake lights, the lack of
precedent interpreting the provision made it objectively reasonable to think that a faulty brake light
constituted a violations
Texas Exclusionary Rule: Article 38.23 [Good Faith]
(b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by law
enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on
probable cause
Police have right to rely on good faith on presumed validity of statute authorized arrest not
applicable under TX state law
Exploratory purpose (officers intent)
Threshold Issues for 4th Amendment applicability
[Requirements:] [Cont.]
State action
Sufficient connection to US
o US v. Verdugo-Urquidez
US agents search Mexican home of foreign national involuntarily brought to the US for trial
No 4th Amendment protection b/c it is a right of the [American] people, citizens, and those
who have a sufficient connection to America
Lower court: no physical intrusion into phone booth, thus no search; physical trespass standard overruled
o No search or seizure b/c did not physically trespass
4th Amendment protects people, not places (even public phone booth)
o Includes intrusions without physical invasion
o Reasonable expectation of privacy (instead of physical trespass)
The use of sophisticated technology makes the finding of a search much more likely?
Not open fields which are not the setting of intimate activities that the Amendment is intended to protect
CL curtilage (adjacent area to home) defined by locus of activities associated with the home within the 4 th
Amendment protection
Ds subjective expectation of privacy manifested by erecting high fences, posting no trespassing signs, etc.
is not enough
FL v. Riley (1989)
Ciraolo and Riley are different b/c they were only visual (not tactile) observation
o Physically invasive inspection is simply more intrusive than purely visual expectation
Bus passenger expects bag in overhead bin may be handled by other passengers or bus employees but not
that they will feel the bag in any exploratory manner
o Immigration officials checked IDs and touched bags above; one detected a brick in soft lined bag
o Consent was given later; was prior touching of outside of bag a search?
Place: dog sniffs are unintrusive b/c it doesnt give any detail but merely observations
Protected areas are not equal: when it comes to the 4 th Amend, the home is first among
equals and front porch is the classic exemplar of [the curtilage] an area adjacent to
the home and to which the activity of the home life extends
o
Intrusion
o FL v. Riley: helicopter was nuisance, etc.
o FL v. Jardines
Visual observation of home from public navigable airspace not a search b/c physically
nonintrusive but detectives had all four of their feet and all four of their companions
firmly planted on Ds curtilage
Baggage of passenger of the bus can be touched by any member of the public
o FL v. Jardines
If limited license
Thus, search that is objectively reasonable is not vitiated by the fact that the
officers real reason for making the stop or search has nothing to do with the
validating reason
Motive irrelevant when there is a search for which there is an objectively reasonable basis;
ulterior motive does not make a valid search bad
Whether there was an objectively reasonable search depends upon whether the officers
had an implied license to enter the porch, which in turn depends upon the ____
Uncommon enhancement of senses
o The more routine and commonplace, the more likely the court will say it is not a search and seizure
Trespass revival
o Pre-Katz reasoning is not abandoned; see Jardines
Chapter 4: search
Kyllo v. US
Warrantless use was unreasonable b/c the thermal imaging device, which is not in a general public use
was used to explore details of the home that would previously have been unknowable without physical
intrusion
Prosecution would use: US v. Place: emanation outside, heat waves floating (dog sniffed odor)
Pen registry installed on robbers phone at the phone companys place of business
o Deciphers the phone number being dialed
Technical installation of GPS device was a seizure, even though it didnt affect operation of the car, car was
in a public place, etc.
Technical trespass requires a justification
Alito: If gov monitors that information (from voluntary GPS) for short period of time, then okay
o Where should we draw that line? What is short/brief time period?
o Cumulative effect of monitoring can become a search or a seizure
If unreasonable, then court will override despite warrant based probable cause or
exception
o There should be 1st Amendment protection (freedom of the press) and not allow officials to look for
themselves; should have to issue subpoena
Confidential sources
PPT:
Mere evidence searches; Warden v. Hayden 255 US 298 (1968) formally abandoned
o Here, Photographer only had mere evidence; he wasnt involved with assaulting police
o Police shouldnt be allowed to do this, even if they think they have probable cause
o Majority rejects it
Advantages of search: surprise, officers dont have to depend on possible hostile 3 rd party who may assert
5th Amendment
o 5th amendment privilege: compelled by the state
Production
Advantages of subpoena: grand jury doesnt have to have probable cause to summon witness
February 2, 2015
Chapter 5: Standing
Standing requirements purpose: personal state in the matter, dont have frivolous law suits
4th Amendment is a personal right; exclusionary rule applied only to individuals whose rights are violated
Shouldnt have to give up 5th Amendment right to get 4th Amendment claim
Gov did not have probable cause to particular individuals documents, since a lot of people have bank
accounts in the Bahamas
Gov seized and copied documents while bank VP was at dinner, including Payners
Standing abolished?
Reasonable expectation of privacy in general: would police investigatory action infringe societal notions of
reasonable privacy [Katz]
Reasonable expectation of privacy (personal): is this D the one whose expectation of privacy was violated
[Rakas]
Brendlin v. CA
MN v. Carter
Olson: invited overnight guests had standing and reasonable expectation of privacy
Carter: invited business associates do not
o Police got tip and looked through window; saw people packaging cocaine
o Brevity of visit? They were only at the apartment for 2.5 hours
o Commercial purpose? Not social guests
o Monkey business? Scalia suggested that it was monkey business
Standing is more ambiguous than it was before; something the state wanted to argue
o Prosecution argument; limits number of defenses to assert 4th Amendment claims
o
Standing or personal privacy expectation
February 4, 2015
Merits of 4th Amendment Issues
Ch. 6: Probable Cause
Brinegar v. US [not in book]:
(Paraphrased): Probable cause exists where arresting or searching officers know of facts and
circumstances based upon reasonably trustworthy info which is sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being committed [by the person to be
arrested] or that evidence of a criminal offense will be discovered in a particular place
o Not very helpful; does not provide much guidance
AguilarProbable Cause?
Officers swore they had received reliable info from a credible person and do believe that narcotics are
present at described premises
SpinelliProbable Cause?
Letter given to police about the couple that drives/flies to get drugs in Florida that is proven to be accurate
Deference owed to issuing magistrates probable cause determination not de novo review
o One year later in Leon, good faith exception made review unnecessary in most cases with a
warrant
Franks v. DE
Facially valid probable cause showingcan it be challenged? Yes hearing on claim if substantial
preliminary showing of:
o False statement or one made with reckless disregard for the truth
o By police officer
o Necessary to probable cause determination
In trying to prove a false statement, is D entitle to subpoena, confront, and cross-examine the alleged
informant?
Cross examination might not apply to preliminary hearings on the admissibility of evidence
Evidentiary provisions to help not cross examine
Rule 508(c)(3) TX Rule of Evidence
Disclosure of informant if: info from informant is relied upon to establish the legality by which evidence was
obtained and the judge is not satisfied .
Judge is required to make disclosure in camera if requested by State and no counsel or party is permitted to
be present; record sealed and preserved for appeal
MD v. PringleProbable Cause?
Consent search discovered cocaine under back armrest; all are arrested
o D later confesses that cocaine was his alone but moves to suppress confession as fruit of illegal
arrest
Possession case for Pringle (no proprietary interest or proximate to the drugs)
Whren v. US
Cars are pervasively regulated that cop can always stop a car and then find something else wrong besides
traffic violation
More difficult to decide objectively what a similar police officer would do under the same circumstances
As long as there is an objectively reasonable basis for arrest/search, you will not be able to defeat the
validity of arrest/search by trying to demonstrate there was an improper motive
February 9, 2015
Misc. Probable Cause issues
Collective probable cause specific officer making arrest or search may lack it
Probable cause to arrest or search cases are interchangeable except for staleness issue
Ch. 7: Warrants
Benefits of Warrants
Opportunity for police to discovery deficiencies in info relied upon for probable cause
Particularity
o Groh v. Ramirez: warrant lacks particularity b/c of police error putting description of place to be
searched in spot for specification of the search object
No cross-reference and affidavit was not included with the warrant; no description of the
items to be seized
Warrant MUST:
Supported by oath/affirmation
Only the last is missing in the warrant but included in supporting affidavit
o
Leon not applicable b/c no reasonable police officer could believe that warrant
authorized seizure
Herring: good faith reliance on erroneous computer entry stating that there was an
outstanding warrant; no suppression despite lack of probable cause or warrant
o Herring has all these defects and no probable cause
MD v. Garrison
Does the scope of the warrant for tavern include everyone present?
Wilson v. Arkansas
Gaining Entry
Wilson v. Arkansas: common law knock and announce requirement part of 4 th Amendment reasonableness
but unannounced entry may be reasonable
o Officer peril, destruction of evidence, escaped arrestee
But no exclusionary rule remedy for knock and announce violations (Hudson v. MI)
Richards v. WI: no blanket except to knock and announce for drug offenses but entry here was justified by
events at Ds door
o Reasonable suspicion
February 11, 2015
[If only thing obtained illegally in criminal cases is the defendant, criminal prosecution cannot be dismissed
as long as probable cause was made later on]
Arrest was illegal; not possible for D to be asked to be suppressed
Arrest for felony in public place not constitutionally required even if there was time to obtain a warrant
Warrants required?
Hot pursuit: if person emerges and then flees, then they can make warrantless
arrest (probable cause)
14.04: when felony has been committed where it is shown by satisfactory proof to a peace officer, upon the
rep of a credible person, that a felony has been committed and that the offender is about to escape, so that
there is no time to procure warrant, such peace officer may, without warrant, pursue and arrest the accused
14.01:
o Warrantless arrest
o Peace officer or any other person can make the rest if a felony is committed in presence or view
OR misdemeanor ____
Warrantless arrest
(2) persons who the peace officer has probable cause to believe have committed an assault
resulting in bodily injury to another person and the peace officer has probable cause to believe that
there is danger of further bodily injury
Suspicious place
Johnson v. State: janitor, murder at apt complex
Janitor was not suspect until he started talking to the police more frequently; arrested him later
o Developed probable cause based on his conduct and words
o Suspicious place b/c murder was committed
o
Hospital was suspicious place for warrantless arrest based on facts establishing probable cause to believe D
was driving while intoxicated
Cooper v. State
Parking lot fender bender at bar was suspicious place where police could make a warrantless DWI arrest,
even though it did not happen in presence of the officer
o D admitted drinking; had cut his chin apparently in accident in parking lot
o Parking lot in front of bar in wee hours of morning with intoxicated bleeding people walking around
wrecked cars constituted a suspicious place
Atwater v. City of Lago Vista
Gerstein v. Pugh: warrantless arrest and continued detention requires prompt, informal, and non-adversarial
judicial review
County of Riverside v. McLaughlin: prompt means within 48 hours (or less if delay is malicious or for
obtaining more evidence)
If no probable cause determination with 48 hours, the State has the burden of showing bona fide emergency
or other extraordinary reason
Plain View
During the course, officers observed something within the scope of their search/seizure
(1) The officers entry is justified in the place where the observation is made
o Warrant, probable cause, etc. (reasonable basis that complies with the 4th Amendment)
Gun shot went through the floor and injured person below in apartment
o Went into Hicks apt looking for who shot the gun
o Had probable cause; no warranted needed (exigent circumstances)
Observation of 2 sets of stereo components is within plain view exception but moving the property to retrieve
seral number is not
Entry justified to look for gun shooter; scope of plain view limited by this purpose
Discovery of the serial numbers is not immediately apparent b/c it occurs during a search beyond
the scope of the justification for the entry
Police unlocked the card door and using standard inventory form pursuant to standard police procedures,
the officer inventoried the contents of the car, including the glove compartment, which was unlocked.
There he found marijuana contained in a plastic bag
This standardized caretaking procedure was [not] a pretext concealing an investigatory police motive
o Not criminal investigation
The inventory was not unreasonable in scope. Once the policeman was lawfully inside the car to secure
the personal property in plain view,
Inventory purposes
Whats left?
CO v. Bertine
o Bertines argument = unreasonable and more intrusive than necessary
Less intrusive options: record as backpack, no inventory record but just park car
o Police: inventory search is standard administrative search (department policy)
Benavides v. TX: impoundment of car legally parked 2 blocks from where D was arrested
o Inventory invalid because of no need for impoundment
o Besides removal from an accident scene or impoundment for parking violations . The police may
lawfully impound vehicles where the owner or driver requests or consents to the impoundment
Court: no justification for impoundment; wanted to see if there was evidence in the car
Found suicide note and other things [was going to kill wife and then self]
Pretext
Whren case:
Gill v. TX: evidence from inventory search of car invalid where backseat is removed
o Police got ___ company to open backseat to get into the locked trunk
Roadblock; sobriety checks
Everyone is being stopped (neutrality and similarly situated) and minimal intrusion
Michigan Dept. of State Police v. Sitz
Only 2 arrests of 126 that passed through before injunction and state had to put program on hold
o Court: drunk driving is a huge safety issue
o Dissent: rate of efficacy of the programs; just put police on patrol instead of making drivers stop
Car stopped and drug dog sniffs around 55 arrests for drug, 49 arrests for non-drug crimes out of 1161 cars
o Detecting drugs, not seeing if driver is impaired
Almeida-Sanchez v. US: roving patrol (not checkpoint) for vehicle search violates 4th amendment
o Not treating everyone the same
US v. Brignoni-Ponce: roving patrol stop for brief inquiry as to citizen status invalid b/c roving requires at
least reasonable suspicion
US v. Martinze-Fuerte: fixed checkpoint stop for brief inquiry into citizen status approved
o Secondary referral system helps to minimize intrusion by reducing delay for all motorists and brief
further inquiry is minimal
o Court: helped speed up and limit detention of most, even if basis for further inquiry that was not
reasonable suspicion or probable cause
US v. Montoya de Hernandez
Extended detention until bowel movement and examine of fecal material after suspect had refused x-ray upheld b/c
officials had reasonable suspicion
Warrant for pregnancy test, x-ray, and rectal exam issued on less than probable cause
o Clear indication of criminal activity = reasonable suspicion and probable cause
o More than a hunch, less than probable cause
o 4th amendment language? Affected by admin law balance
Travel abroad: bags can be opened and searched without probable cause and a warrant
Admin Searches
Exceptions to probable cause
Reasonableness based on neutrality of treatment; everyone is treated the same way (primarily/initially)
The cornerstone of the 4 th Amendment is that individualized suspicion justifies official intrusion against a particular
person or place but admin search reasonableness depends on treating similarly situated persons the same
Camara balancing test
Search may be reasonable without probable cause or warrant if minimally intrusive and necessary for
regulatory program
Intrusion vs. need
Admin warrants
o Provides assurance, search + scope, probable cause for the search
o Doing this to everyone who is similarly situated
Auto chop shop; make sure it is not a market for stolen cars/goods
Regular inspection program, statute that no warrant is needed, cannot refuse search,
[Colonnade-Biswell]
Reduced expectation of privacy by an owner of commercial premises in a closely regulated industry
Special needs
Public schools
o Minors have less than expectation privacy
o NJ v. TLO: warrantless search of student based upon reasonable suspicion
School official fully searched minor without warrant or probable cause at school
State is required to look out for welfare of children, provide safe environment, etc.
o Vernonia School District v. Acton
Random drug testing of student athletes through urine sample supervised by same sex
monitor
Reasonable b/c of need, especially for sports leaders and limited intrusion (in use of info
and method of collection)
Results were not passed onto law enforcement; only school and sport
Limited the testing program to only student athletes (not every student)
Athletes are leaders, more involved with drug activity, dangerous for their
sport/injury or body,
o Pottawatomie v. Earls
Drug testing program required for students wishing to participate in any extracurricular
activities
Students required to take an initial drug test and are subjected to possibility of further
testing on random basis and if there is reasonable suspicion of drug use
Probation or parolees
Children
Drugs are nationally a problem; takes little to single out/tailoring to the specific school
Ferguson v. City of Charleston
Pregnant womens urine specimen taken as part of medical care at hospital turned over to law enforcement
for criminal prosecution for drug offenses and child neglect
o Staff: for health of mother and fetus, needed to get women off crack/cocaine
o Devised a program with advice/assistance from law enforcement
o Threatened with criminal prosecution if pregnant drug addict did not get clean (drug treatment
program)
Like criminal investigation road block in Edmond, motive of criminal investigation matters even if there is
regulatory or health and safety justifications
Appellate: reversed b/c searches were reasonable (random urine testing); dont need to reach issues of
consent
Primary purpose of the program: health program, important for mothers health and to prevent crack babies
Dissent (Scalia)
o Regarding secret gov agents or state action turning information over
o If private doctors, there probably wouldnt be an issue
Nature of investigatory stop involves exigent circumstance; not required to obtain warrant
A Terry stop
Brief stop? Intent of police? Actual frisk and suspicion requirement of officer
o Camara: various inspections are not stigmatizing, neutrally applied to people similarly situated
Terry v. Ohio
Is it a search?
o See footnote 13: State had argued that 4th Amendment only becomes applicable when police action
rises to level of arrest
o Detention and possible pat-down is substantial and stigmatizing intrusion upon the person
Facts: might be in process of a stick up, pats down coat of Terry and feels a gun (illegal to carry weapon)
o Terry arrested and gun introduced into evidence against him
Warrant?
Not practical to require officers acting on reasonable suspicion to obtain a warrant and constitution
does not allow warrants on less than probable cause
Justification of FRISK
o Double suspicion required: 1) stop or detain and 2) frisk
Frisk allowed when officer has reasonable suspicion to detain AND has reason to
believe that he is dealing with an armed and dangerous individual
Execution of Frisk
o Outer garment pat-down designed to discover weapons only upon reasonable suspicion
Pat down must precede and provide reason to reach and take item that might be a
weapon
Here, officer never reached into pockets of one man b/c did not detect anything that could
be a weapon during pat down
o Not for evidence but the safety of the officer
o Alternatives to a frisk: ask for ID (see if there is outstanding warrant), ask questions, ask for
consent for search, dog sniff
FL v. Bostick
Bus ride from Miami to Atlanta; officers come on bus at Ft. Lauderdale stop and ask to consent to search,
carrying zipper pouch with a pistol
o Bostick consents and cops find cocaine
Bosticks claim: detained b/c wasnt free to leave the bus // Terry
CA v. Hodari
Hodari sees police vehicles in neighborhood and runs away; throws away drugs before officer tackled him
o Seizure (use of force with touching to restrain or attempt OR show of force which one submits)
Dissent:
IL v. Wardlow
Police go to high crime neighborhood; holding opaque bag, Wardlow runs and police chases him with the
bag
o Officers restrain him = seizure
o Justified by at least reasonable suspicion (flight provides reasonable suspicion)
Person can refuse consent to officers search without adding suspicion (but officer doesnt have to tell them
that)
Florida v. JL
Anonymous tip of plaid shirt man at bus stop with a gun; frisked all three men standing there
o Unjustifiable, but probably not uncommon
Contrast with AL v. White: reasonable suspicion from anonymous tip which involved a
more detailed tip with corroboration of predictive info
An accurate description of a subjects readily observable location and appearance will help the police
correctly id the person whom the tipster means to accuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.
Court rejects states pleas to adopt a firearm exception, which would justify a stop and frisk even without
reasonable suspicion
However, in dicta the Court states that danger alleged in an anonymous tip might justify a search without
reasonable suspicion if there is a report of a person carrying a bomb or where the reasonable expectation
of 4th Amendment privacy is diminished, such as airports and schools
Navarette v. CA
911 call by citizen who was forced off road by pick-up truck; gave the license plate, location traveling, etc.
Eyewitness observation of possibly criminal act (drunk driving), credibility argument by using 911
system, which can be traced (not anonymous and more reliable), and crime and safety concern b/c
of reckless and possible drunk driving
o NOT like Florida v. JL
Dissent: location only like Florida v. JL
o Caller may still be unknown, spontaneity of tip questionable b/c had time to record complete license
plate number, impaired driver assumption is speculative and not supported by police surveillance
o
Terry: need for officers to act now or prevent person who just committed crime from leaving the scene
US v. Hensley: allowed Terry detention based upon suspects resemblance to person wanted for past crime
US v. Sokolow
DEA profile
o The fact that factors may be set forth in a profile does not somehow detract from their evidentiary
significance [for] a trained agent
Terry: expertise of law enforcement may be entitled to greater weight than someone who
didnt have that training
o Dissent: reflexive reliance on a profile of drug courier characteristics runs a far greater risk of
subjecting innocent individuals to unwarranted police detention. This risk is enhanced by the
profiles chameleon-like way of adapting to any particular set of observations
Taking out of public view and where lots of police officers are (intimidation) is more than
scope allows in Terry, unless there is reason
Facts: call tip to police station of man assaulting a woman; police saw man on side of road and asked for ID,
Hiibel refused and said he doesnt have to
NV statute:
o peace officer may [temporarily] detain any person whom officer encounters under circumstances
which reasonable indicate that the person has committed, is committing or is about to commit a
crime
o
HIIBEL: If officer has reasonable suspicion for criminal activity and investigates further, you must ID self
o Just provide name, dont even have to give ID card
Brown v. TX: statute unconstitutional for allowing officers to detain until person gave ID
5th Amendment issues as well (when compulsion by state official to give testimonial evidence
Disclosing name
o
A;sldjf
Sibron v. NY
Terry cases: was there a detention? Force or authority where the individual has admitted? Did officer have
reasonable suspicion to detain? Reasonable bounds of detention? Officers taking reasonable measure to
confirm/dispel stop in the first place?
Second level of reasonalb suspicion (armed and dangerous) to justify outer garment pat-down frisk for
weapos for protection of officer?
o If went further, did officer reason in and perform taking?
Facts: officer observed Sibron with known drug addicts for hours; did not see drug exchange, etc.
o Voluntary detainment when asked Sibron to go outside
o Officer: do you know what Im after? Sibron puts hands in pocket, officer immediately reaches in
Sibrons pocket (no pat-down), and found drugs
Tip that D had drugs and gun on his waist; officer approached vehicle and immediately reaches for gun
when D rolls down window of car
o
MI v. Long
Car suddenly swerved into ditch; driver seemed impaired, there was a hunting knife on the floor of the back
seat
o Police said he may be dangerous
o [dissent: they werent going to let him back in the car anyway because he was impaired, how can
the hunting knife hurt the officer if they do let him back in the car]
Allows car frisk when officer has reasonable suspicion that individual is armed or has weapons in automobile
o May conduct search interior/parts of vehicle where there are weapons for their safety
Reasonable for officer to believe that consent to search car allows opening containers within car but the
nature of the container may be relevant
o Breaking open locked briefcase without asking for further consent or for a key would be
unreasonable
Voluntary consent
Schneckloth v. Bustamonte
Was consent voluntary? Must the State prove that the suspect knew that he/she could refuse?
Absence of coercion rather than voluntary consent would be more accurate description of voluntariness
requirement
Facts: traffic stop with 6 men in car; using brothers car, driver consents to search; found 3 stolen checks
Court: difficult for State to meet burden of knowledge of right to refuse consent
o // due process voluntariness law regarding confession (coerced confessions prior to Miranda)
go ahead when told there is a search warrant is not free and voluntary choice
What should an officer answer if asked what will happen if I refuse to consent?
o Bad answer: I will get a search warrant
Court: State had to prove consent was actually freely and voluntarily given
Third party consent
Police officers may search jointly occupied premises if one of the occupants consent
o If the other is not present, it is allowed
o If the other is present and objects, there is not actual authority
No requirement that police consult nearby Matlock (absent through police arrest) or wake
sleeping Rodriguez to ask his opinion
Fernandez v. CA
Authority to consent does not depend on ownership of the property if the 3 rd party has use, control, access,
etc. over the property then they can consent
o Assumes the risk
Facts: wife appears to be victim of domestic violence (probable cause) and arrested Fernandez; police came
back later and got consent from wife to search
o Husbands instruction not to search prior to his arrest does not prevent wifes valid consent
o Even if absence is deliberately procured through arrest to obtain consent from remaining tenant
Court: there was objectively reasonable basis to remove Fernandez, then his prior objecting of the search
consent does not matter
o No violation if arrest is objectively reasonable
o Wont question motive of police officers
Majority: irrelevant whether police could have gotten a warrant, since consent is an exception to probable
cause and warrants
o Homeowner may desire immediate police search to eliminate suspicion and allow officers to focus
attention elsewhere
o Should not invalidate consent just because a warrant could be obtained if consent to a search
allowed
Dissent: could have gotten a warrant, since they came back later
o By avoiding obtaining a warrant, state actors should assume risk of relying upon consent
o Domestic abuse avoided by exigent circumstances allowing arrest and securing premises
IL v. Rodriguez
Issue: whether a reasonable police officer would believe that the person consenting has that authority
NOT whether the person consenting has sufficient use, access, and control of the property
o [It would be invalid]
4th amendment does not require the police to be right but only reasonable
Facts: woman abused and brings police to the apartment, making it seem like she lived there
o Seized contraband and used against sleeping Rodriguez in trial
o Woman was ex-gf who moved out a month before, kept key to apartment
Dissent: reasonable mistake built into probable cause standard but home entry without a warrant is a
different question
o When warrant could have been obtained, state should assume risk of acting without one
Consent by deception
This deception to get consent is invalid b/c it goes too far and gives homeowner no choice
When you knowingly inviting someone in, you lose a sense of privacy
Hoffa v. US
Facts: gov places secret agent in defense camp during ongoing trial; Hoffa charged with violations of Taft-Hartley Act
(union activities); Partin overheard plans of Hoffa to bribe jury
Hoffa raises:
o 4th Amendment: assumption of risk
4th Amendment not applicable on basis of consent and assumption of risk as with unwired agents
o Assume risk that AND conversation will be broadcasted
March 18, 2015
Midterm review
March 23, 2015
Ch. 16 Confessions
5th Amendment: cant be compelled to self-incriminate
No derivative evidence
Broadest applicability
Broadest discretion
Massiah inducing statement after adjudicatory process has begun without valid counsel waiver
38.22 TX CCP: Miranda codification with additions (recording, writing, more warnings)
Involuntariness
Common examples
o Physical brutality or threats of violence
o Prolonged incommunicado interrogation without food, sleep, clothing, etc.
o Promises of leniency by police officers
o Fabricated evidence presented to suspect
AZ v. Fulminante
Harmless error
o Claims immune from harmless error:
Depriving D of counsel
If constitutional error, the conviction has to be reversed unless state can show it did not attribute to the
conviction
Structural error
March 25, 2015
Decided on basis of due process involuntariness (prolonged interrogation, request for counsel ignored,
deceptive use of friend)
o Fact based, due process analysis
o Judges urge 6th Amendment theory (right to counsel) b/c of interrogation without counsel after
indictment for capital offense
Wasnt voluntarily making a statement because partner was undercover and wired while
talking about the incident
o When there is a charge, things change
This tactic does not violate the 4th Amendment on an assumption of risk theory
o Not considered compelled for 5th Amendment purposes
o After indictment, the 6th Amendment prevents deliberate elicitation of statements without counsel or
waiver
Waiver in this case was not possible b/c of secretive nature of the police action
Differences:
o Spano and Escobedo asked for attorney to be present
Massiah forgotten
o Overshadowed by Escobedo 2 weeks later, which appeared to push the right to counsel back to an
earlier point, post-arrest custody
o Escobedo had not been indicted but he affirmatively requested counsel and police officers
prevented counsel from visiting with client
Ignoring this request when D had become the focus of the investigation violated his 6 th
Amendment right to counsel
Escobedo was not indicted, but taken into custody and became the focus of the investigation
o No longer general questioning
Escobedo said he did not shoot the victim, which was admittance to being at the scene of the crime
Miranda v. AZ
Long list of D who had confessions that were not coerced in due process but admitted against them in trial
o None of them had warning of right to remain silent or request attorney
o Miranda was first on the list
Escobedo found a confession inadmissible under the 6 th Amendment when an affirmative request for
counsel by the suspect to see counsel (and counsels request to see client) was ignored
o Miranda, although argued 6th Amendment case, found that the 5 th Amendment was violated even
without an affirmative request for counsel (or to remain silent) if the police failed to warn the
accused
Miranda warning
o Confession made during custodial interrogation inadmissible unless D waives the rights contained
in 4 warnings
If you cannot afford an attorney one will be provided for you at State expense
o Giving Miranda warnings
Makes police look professional, officers use proof that they gave Miranda warnings in 14th
Amendment cases, relieves coerced confession allegations
Dissent: nowhere in Constitution does it say if you dont give warning, then it is coerced
o Courts should not decide and create rules
Judicial legislation, an invention of idea of 5 judges
Prof Reamey slide
Bright line rule; if dont give warning when it is required, they will not let you state your claim (end of
analysis)
o Other factors are irrelevant; per se rule
o Miranda was criticized on this basis
Reasoning: protect trial right and make sure that the confession was not compelled
Warnings are reinforcing; failure to give part of it is a failure of giving the Miranda rights
o Very technical rule
Custody slide
Any voluntary statement not prompted by police of any kind is not barred by inadmissibility
o Not state action inducing a statement
If given in English when the person doesnt understand the language
Sometimes when people deny guilt, they end up saying something useful to incriminate
If remain silent and tells they are invoking, then interrogation must seize
If individual asks for attorney, interrogation must cease until attorney is present
What is required to show a waiver?
Express statement that individual is willing to make a statement and does not want an attorney COULD
constitute a waiver
o Need an expressed waiver
o If silent or respond with mhmm, then this does not constitute a waiver
Can the suspect change his mind?
Right of 5th Amendment to have counsel present at any questioning (interrogation), as well as consult prior to
questioning
If Miranda warnings are given and suspect fails to invoke rights, police may:
o Isolate suspect, display air of confidence regarding suspects guilt
Does Miranda outlaw Mutt and Jeff?
Codifies Miranda
o Adds to Miranda rights that one can invoke rights at any time if one did not waive it
If electronically recorded, must record giving the warning
If written, Miranda warning must be on that document
Sec. 3c: Fruit of the poisonous tree rule
o Takes back some of what the statute gives to the D
o How statement can still become admissible
If violate only Sec 3c and in that statement, the D says something true
o Corroboration can make the confession and the evidence derived from it admissible only if violation
of 38.22 is part of the statute that exceeds Miranda, not the part that codifies it
Beckwith v. US: D was the focus of the investigation but not in custody during IRS audit (tax fraud) at Ds
home
o Failure of Miranda warnings did not matter
o No characteristics of police domination, custodial interrogation
Orozoco v. TX: D was in custody at his home when multiple police officers present late at 4 am with D in
handcuffs
OR v. Mathiason
D not in custody despite police station interrogation b/c D agreed to meet police officer at station (not the
officers place of employment) b/c it was convenient for D
o D came voluntarily; told he was free to leave and allowed to leave at end of interview
o No custody; thus no Miranda requirement
Officers false statement about having discovered Ds fingerprints at the scene of crime
o OR Sup Ct: contributes to coercive environment which makes Miranda rationale applicable
Whatever relevance this fact may have to other issues in case has nothing to do with
whether respondent was in custody for purpose of Miranda rule
CA v. Beheler: D not in custody although he was taken to police station by officers for questioning
o D voluntarily agreed to go
MN v. Murphy: Ds interrogation by his probation officer not custodial b/c D voluntarily arrived at an agreed
time that was arranged for Ds convenience and D was familiar with office b/c of previous meetings
o Free to leave
o Probation officer is not like a friend
o Failure to report or comply can be basis for revocation, even if it doesnt involve criminal conduct
IL v. Perkins
3 undercover officers posing as inmates discuss plans for sham escape and ask D if he was ever done
anyone; D in jail for different offense but talks about a murder he committed
o Despite direct question, suspect in jail
o Violation of 6th amendment
o Not violation of 5th amendment: suspect doesnt know hes dealing with an agent
If in investigatory phase, Miranda may apply if custody and interrogation even if no charges filed
o Secret investigation does not include custody
If in adjudicatory phase and awaiting trial for the particular case of that phase
o Arms length adversarial
Undercover agent interrogation
IL v. Perkins: no charges had been filed with the subject of the investigation
o Perkins in the investigatory phase
Howes v. Fields
o Relevant factors
Person already serving prison sentence generally not shocked when questioned in jail
o Vs. someone who is arrested at home and taken away
D did not invite interview or consent to interrogation and was not advised that he was free to decline to
speak
Told he was free to leave (but had to be escorted by officer), not physically restrained or threatened, well-lit,
average sized room, comfortable, offered food/water, door sometimes left open
Traffic stop is not custody b/c it is in public and brief (like Terry stops), which do not require Miranda
warnings
o Officers subjective decision to arrest is not decisive if not communicated
o Detainee not obliged to respond
o Unless detainees answer provide officer with probable cause to arrest him, he must then be
released
Facts: cab driver who had been robbed id robber from pictures; probably murder of other cab driver
o Arrested D when he was standing in street; D was given Miranda warnings several time and asked
for attorney
o Police officers did not talk to him after; while driving him to station, police talk among each other
regarding murder weapon and how children in the area may find it and get hurt
o D tells police to turn around and shows where the gun is hidden
Any words/actions on part of the police (other than those normally attendant to arrest and custody) that
police should know are reasonably likely to call for incriminating response
Conversation or manipulation?
Majority: showing of unusual susceptibility of suspect known to police would be a factor in determining
whether police action or statement was interrogation here
o Nothing in record to suggest that officers were aware that respondent was peculiarly susceptible to
an appeal to his conscience concerning the safety of handicapped children
Dissent (Marshall):
o Majoritys opinion of police convo = off hand
Exception to Miranda for express booking questions routine circumstances attendant to arrest or custody
o Observations of slurred speech in responding is incriminating but not testimonial
After interrogating D once only about a firearms offense, officers in a 2 nd interrogation began with firearms
but changed the subject to murder without prior warning to Spring that this would be discussed and without
new Miranda warnings
o D claimed that new topic needed new Miranda warnings
Such additional info could affect only the wisdom of a Miranda waiver, not its essentially voluntary and
knowing nature
o Court refused any extension of the Miranda warnings
Precision required for suspects but not police officers
Duckworth v. Eagan
We have no way of giving you a lawyer but one will be appointed for you, if you wish, if and when you go
to court you have the right to stop answering at any time until youve talked to a lawyer
o Suggests that you cant have a lawyer now, but you can later on when you go to court
Court: have never insisted that Miranda warnings be given in the exact form described in that decision
o Prophylactic Miranda warnings are not themselves rights protected by Constitution, but instead
measures to insure that the right against compulsory self-incrimination is protected; therefore,
courts reviewing need not examine Miranda warnings as if construing a will or defining the terms of
an easement
16 year old waived and did not invoke a Miranda right through dialogue
o After Miranda warnings, officer asked if wanted to have attorney present
o Boy asked for probation officer, but officer said he had a right to cop
o Officer repeats Miranda warning and boy chooses to speak to them
Court: Miranda violation but doesnt mean Hass could take the stand and
Prosecutors: how come you didnt say that police officers if it was true?
o Due process violation
o Been told that silence is a safe harbor, but using it against him violate
Jenkins v. Anderson
Acted in self-defense
No due process violation; in absence of state evidentiary rule, there is no constitutional violation for D using
silence
Fletcher v. Weir
Due process
Sanchez v. TX
Salinas v. TX
Interrogation not during Miranda custody (D agreed to speak to officers at police station and provide
elimination prints)
Asdf
Easing the States burden of showing waiver of Miranda rights
CT v. Barrett
State established waiver in case where after D had received Miranda warnings, he stated: he would not
give the police any written statements but he had no problem in talking about the incident.
o Oral statement was admitted against him
o Court: Miranda was not violated even though it seems questionable that suspect understood the
warning that anything you say may be used against you
NC v. Butler
Language about heavy burden to show waiver in Miranda did not preclude finding an implied waiver from
consideration of all circumstances without an express statement of the suspect surrendering rights
Court: prosecution does not need to show that a waiver of Miranda rights was express
o Implicit waiver of the right to remain silent is sufficient to admit a suspects statement into
evidence
o Butler made clear that a waiver of Miranda rights may be implied through Ds silence, coupled with
understanding of rights and course of conducing ___ waiver
Miranda and State interference with counsel in investigatory phase
Moran v. Burbine
Events occurring outside of presence of the suspect cannot have bearing on capacity to knowingly relinquish
a constitutional right
o Not knowing or voluntary
Evidence derived from Miranda violations, public safety exception, and survival of diminished Miranda rule
NY v. Quarles
Rapist tracked down by police; asked D where the gun was; D nodded in the direction and said the gun is
over there
Silence right invoked as to robbery, scrupulously honored by officers who immediately ceased interrogation
o Court upheld subsequent questioning by different officers about different crime (murder) after 2
hours with new warnings
Valid waiver
Officers cease interrogation after counsel right invoked; next morning officers interrogate D about same
crimes with new warnings
o Court: new interrogators, passage of time, and new warnings are NOT enough
o Valid waiver not established merely b/c D responded to police-initiated interrogation
Court creates new per se non-initiation of interrogation rule until counsel has been made
available following invocation of the right to counsel
Right to counsel = court created rule designed to tell suspect they have the right to an advocate
o Subsidiary right
Primary right = right to remain silent and not making a criminating statement
o Police dont violate Miranda when ceasing interrogation
Violated b/c an attorney was invoked rather than the right to remain silent
o More powerful than the right to remain silent
o Court created rule that police cannot initiate any further interrogation
AZ v. Roberson
D invokes counsel clearly regarding burglary interrogation (at the scene of the burglary)
o 3 days later while D is in custody, he is interrogated about different burglary by different officer
Doesnt matter of different crimes; prior invocation, focus whether on D is ___ and not voluntary
[missing slide]
Minnick v. MS
Even after attorney provided, non-initiation rule continues after initial invocation
o Counsel invocation honored by FBI agents; 2 days later, new warnings given and appointed
counsel spoke with D (at least twice) prior to interrogation by MS officer
The non-initiation rule persists; petitioners statement was not admissible at trial
Clarity of Edwards rule desirable and danger of police badgering of D still persists
o Court: when counsel is requested, interrogation must cease and officials may not reinitiate
interrogation without counsel present
Probabilities change; heightened awareness of right to remain silent after speaking with
attorney
o Harder to establish waiver for Minnick type of D than a newly arrested D without counsel
OR v. Bradshaw
D provided alcohol to minor that was later killed as passenger in car wreck
o Invoked right to counsel; D was transferred to jail facility and asked well, whats going to happen to
me now?
Officer: stay with your decision to remain silent and have attorney present, but if you want
to, you can make a statement and help self by taking polygraph test
Officers told him he failed; D then made incriminating statement about driving/wrecking
car
Plurality: evinced a willingness and desire for generalized discussion about investigation
o No violation of Edwards
o Statements made to polygraph examiner were voluntary and result of knowing waiver of right to
remain silent
Dissent: Edwards defeated only if accused initiates a desire to discuss the subject matter of the investigation
D can change his mind in regards to speaking without attorney present after invoking right to counsel
Davis v. US
MD v. Shatzer
Resumed interrogation 2.5 years after counsel invocation of same offense (sexual child abuse)
o New Miranda warnings
Edwards rule does not perpetually disable law enforcement officers from initiating interrogation
o Because clear guidance is required, 14 days without Miranda custody is sufficient for non-initiation
rule
Sufficient period of time to protect individual who has asserted right to counsel
Can always ask for counsel again when given new Miranda rights
April 8, 2015
Ch. 21 Massiah Rediscovered
[Massiah v. US (1964)]
Post-indictment use of wired secret agent (co-defendant) to induce D to make incriminating statements
Miranda warnings are not required b/c D is not in custody; unaware that he is dealing with state agent
o Statement is not presumptively compelled under Miranda and not actually compelled but there is
also a 6th Amendment right
Brewer v. Williams
Facts: mental patient abducted girl; fled to another city and got caught; Miranda rights told and chose to
speak to attorneys; while being transferred police talked about Christian burial for the girl before snow
coming in
o Court: Ds right to counsel was violated
[argued as Miranda]
Miranda argued as 6th Amendment case but decided on 5th Amendment grounds
Williams argued as 5th Amendment case but decided on 6th Amendment grounds
Court:
Dissent: how much more effective warning can you get than that?
Problem: when was the last warning given? Sometime right before the Christian burial
speech. If there is gap, then that is a problem without giving Miranda again
o Invocation by counsel and/or by D?
Initiated by police
Dissent: there was waiver; police made a statement and D told them where body was
o D initiated further discussion?
Dissent: D did not respond to Christian burial speech; but later told where to find body
o Public safety exception?
o Derivative evidence?
Talk about interrogations and effectiveness of warnings were in the mode of Miranda
o Same issues dealing in a Miranda case
Deliberate elicitation
o Christian burial speech
D indicted with others informed that particular gang member was not indicted
o D asked why not, he did everything?
o D had not been appointed counsel; received Miranda warnings and waived then
o Subsequently made a statement
o Never invoked right to counsel
Is Code of Prof Resp forbidding counsel from contacting represented party without notice to
counsel relevant?
TEXAS
Holloway v. TX
Facts: D appointed attorney, but attorney didnt want case; later attorney shows up saying he is Ds attorney
o D did not invoke right to an attorney
o
More restrictive Texas waiver rule based upon footnotes 3 and 9 of Patterson case
No waiver of 6th Amendment counsel right in absence of notice to counsel prior to any attempt to deliberately
elicit evidence from client
o Ds unilateral waiver was not sufficient
Requires custody
Requires interrogation
Not applicable to secret agent (Perkins case)
Public safety exception
Attorney cant invoke
Derivative evidence admissible
Applies to custodial interrogation in either
phase
Massiah
No custody required
Attorney interference
Gov agent in jail told to listen but not to question D about crime
6th Amendment violated b/c deliberate elicitation standard met by back and forth conversations in close
quarters of jail during continuous association when gov agent compensated on contingent fee basis
o Got paid on usefulness of information
o Passive listening post that does not elicit statements from D might be different
Court: consistent presence with motivation (contingent fee) made it likely that this situation would induce
statements
o Dissent: not deliberately illicit, application not supported by facts b/c agent did not violate b/c did
not interrogate or initiate conversation with D
Kuhlman v. Wilson
When D told agent story that he told police, the agent stated that didnt sound too good
o State court affirmed finding that state agent had obeyed instructions only to listen
o Fed habeas denial reversed by Ct of Appeals under Henry
o US Sup Ct: deference to state fact-finding was required
D indicted for burglary confessed but denied knowledge of residents missing from burglarized house
o D later admits to killing mother and daughter during burglary
o 6th Amendment did not apply to the capital murder
Offense-specific 6th Amendment uses the double jeopardy test of Blockburger, which asks whether each
statutory offense requires proof of fact that the other does not
o Look at each statutory offense; does it require proof of fact that the other does not
unrelated offenses
[Application slide]
Overrules Michigan v. Jackson, which held that Edwards-type of non-initiation rule applies when D requests
counsel in court hearing or appears with counsel at a court hearing
o Jackson leads to arbitrary responses from State courts
o If want an attorney, all you have to do is say so
o If secret gov agent, dont have to say so b/c you dont know state is trying to illicit something from
you to violate 6th Amendment
B/c request for counsel does not occur when appointment of counsel is automatic, court found Jackson
unworkable given different state procedures and unnecessary b/c Edwards still exists
o If D wants to deal with authorities only through counsel, D needed only to say so
[ME v. Moulton
Co-D gets D to discuss crimes for which both had been indicted
o D suggested possibility of killing a state witness
o Gov argued that all statements should be admissible b/c police had investigatory purpose for crime
not yet in adjudicatory phase
Court: statements related to witness are admissible but not statements for indicted crimes
Exception to usual rule that a constitutional violation requires suppression of both the direct product of the
violation and evidence derived from it
o Auxiliary nature
o Physical evidence derived from the statement
Does the same rule apply when the evidence derived from a Miranda violation is a second confession that
viewed in isolation, complies with Miranda but was influenced by a prior confession?
o Not a fruit of poisonous tree exclusion, but a direct Miranda
MO v. Siebert
Facts: child with cerebral palsy dies naturally, Mom scared of neglect charges and her other sons/friends
burn house down while leaving another mentally ill teenager to die as well
o Officer asked her questions without Miranda warnings, got her to admit
o Later came back and gave Miranda warnings, confronted her with the statements she made prior to
Miranda warning
Decided same day as Patane; finds second confession inadmissible but (for plurality) not on fruit of
poisonous tree grounds
Court (plurality)
o Deliberate evasion of Miranda by refraining from giving warnings in first interrogation and then
confronting D with prior statement after giving warnings for 1st time
2nd confession also violates Miranda b/c of ineffectiveness of warnings under circumstances
objectively viewed from Ds perspective
o This analysis avoids creating exception to non-applicability of fruit of poisonous tree to Miranda and
does not overrule Elstad
Concurrence: should have good faith requirement; if lack of good faith, should change rules regarding fruit of
poisonous tree
Dissent: second confession admissible even if prior confession did not comply with Miranda
o Elstad controlling but dissenter prefer plurality to good faith approach of the concurrences b/c
plurality preserves the rule that fruit of poisonous tree analysis is inapplicable to Miranda violations
and avoids making determinations of subjective bad motives of officers
Aside from Miranda, the usual rule of fruit of poisonous tree or inadmissibility of derivative evidence prevails
unless the State can show that the fruit is not poisoned in one of these ways:
o Independent source
Fact question
Used most often when testimonial evidence raises questions of human motivation
Miranda warnings
Temporal proximity
Intervening circumstances
NY v. Harris
Even though arrested without warrant, the illegality ends once taken from the home
No attenuated connection
Dissent: look at whether the illegality influenced the conduct of the D involved
Brown v. IL
Police broke into home and pointed gun when D entered his apt, arrested him without arrest warrant or
probable cause
Court: Miranda warnings are not enough (see four factors above)
Taylor v. AL
Nix v. Williams
Inevitable discovery
At retrial, Ds statement and actions leading officers to the body not offered but derivative evidence is
admitted
o Introduced scientific evidence of autopsy, not that D showed where body was
Fruit is unpoisoned b/c search party would have found body within hours of the actual discovery in the same
condition
o Inevitable discovery doctrine prevents State from being put in worse position than if there had been
no constitutional violation
6th Amendment violation; does not have same subsidiary quality that 5th Amendment Miranda right has
TX Rule
TX has rejected inevitable discovery under 38.23 CCP which requires suppression b/c evidence is derived
from a constitutional violation
o Garcia v. State, 829 SW.2d 796 (1992)
Need to cite 38.23 in TX cases, otherwise, TX court will only use federal
[Impeachment]
Although Miranda is the exception to the fruit of the poisonous tree rule for derivative evidence, allowing
impeachment use of evidence obtained in violation of Miranda (see Harris and Hass) is the norm for
constitutional violations
o US v. Havens: 4th Amendment illegal search
o Harris v. NY: 5th Amendment Miranda violation
o KS v. Ventris: 6th Amendment Massiah violation
Before 1967 there was no constitutional argument available against admissibility of identification procedures
o Defense could only argue weight
US v. Wade
D is arrested and indicted; made to participate in a line-up in which he was required to wear tape on his face
like the robber and speak spoken words
o Adjudicatory phase
o Unprecedented
o Purpose: trying to deal with suggestive procedures during identification; prevent unfairness
Reason: can have attorney at trial and any critical stage prior to trial
No waiver
o
Unlike scientific testing where techniques are standardized and procedures can be recreated on
cross-examination suggestion in identification procedures may go undetected
o Court: right to have attorney present during identification
Cannot direct the id process; does not waive objection by not voicing complaints
(possibly the suggestive line-up rather than remember D from scene of crime)
In-court id?
o State should have chance to prove independent source based on factors
Opportunity to observe
Incorrect id or failure to id
No Wade cases discussing waiver in stark contrast to 5th and 6th Amendment confession
law
Counsel will usually prevent interrogation, but counsel cant prevent line-up that produces
non-testimonial evidence
Wade counsel can help assure fairness but not prohibit the id
Dissent:
o Broad per se rule excluding id evidence when counsel not provided without regard to
circumstances
IL v. Kirby
Facts: 2 days after crime, show up (photographic id) happens after arrest but BEFORE indictment
o Victim walks through door and sees two men, blaming them (seems to be suggestive)
Dissent: possibility of suggestiveness, inability to reconstruct, and importance of id testimony apply to both
pre and post indictment procedures
o Wade had been indicted, but this fact was barely mentioned
o Risk of misidentification and still need for attorney present whether in investigatory or adjudicatory
phase
Photos preserved
o 5th Circuit requires photos be preserved or evidence of pretrial photo id is not admissible
Stovall v. Denno
Facts: criminal stabbed husband, tried to stab wife; she survived but in critical condition in hospital
o Police brought D to her hospital room, only black person in the room, wife identified D as criminal
Suggestiveness
That is unnecessary
Important to show
Single presentation encounter in police custody is suggestive, but not unnecessary b/c of possible
impending death of witness in Stovall
Ch. 25 Identification: Fruit of the Poisonous Tree and State Action
Manson v. Brathwaite
Suggestive and unnecessary to present single photo of accused 2 days after encounter
o Due process only occurs if the unnecessary suggestiveness gives rise to a substantial likelihood of
mistaken id
Only 2 days after sale of drugs, undercover officer had good opportunity to view
April 22, 2015
Perry v. NH
Requires law enforcement agencies to develop policy for photographic and live line-ups
Driver stayed in car when pulled over by cop, overpowering air freshener, driver appeared nervous, drove to
Omaha, NE to look at for sale Ford Mustang for sale but hadnt seen a picture of it or worried about title
issues
Cop hands warning ticket to driver, asking do you mind if I have dog walk around car
Appellate: prolonged encounter for 7-8 minutes; 4 th Amendment problem if dog sniff increases amount of
time for detention
o No serious enough or long enough
o Convicted of 5 years affirmed
Note to tell cops: dont write the ticket yet, and have dog smell
o If smells nothing, just write ticket and youre okay
Review