Crminal Procedure – Cheh - Fall 2011

CIVIL v. CRIM:

  • Determinant = leg definition
  • Courts defer unless major showing that proceedings clearly not what leg said
  • Req’s “clearest proof” that statute “so punitive in purpose or effect” that couldn’t possibly be civil (Hendricks (KS))
  • Far greater protection for crim than civil
  • Ex post facto, 5A, 6A, etc. only apply to crim

CRIM PRO MODELS:

  • Crime Control:
  • Goal = efficient investigation & prosecution
  • Priority = efficient crime prevention
  • Few formal procedures, reviews, etc.
  • Lots of latitude for prosecutors & cops to determine guilt
  • Ideal resolution = guilty plea
  • Presumes factual guilt
  • Due Process:
  • Priority = reliability & error avoidance
  • Formal, public, adjudicative adversary fact-finding before impartial tribunal

GENERAL:

  • Rules generally apply retroactively only to cases still in the system (i.e., haven’t been finally decided)
  • NOT to cases alive only on indirect review (on habeas, e.g.)

GENERAL: (30)

  • “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 Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
  • Verdugo-Urquidez – US cops searched D’s homes in MX w/o warrant
  • 4A doesn’t apply b/c non-resident aliens aren’t “the people,” at least for searches outside US
  • Brennan: Unfair to hold D liable for violating fed law, but deny accompanying protections
  • Pretext:
  • Irrelevant
  • Whren– Cops stopped suspicious car for traffic violation, but really wanted to see if drug dealers
  • If RS to stop or PC to search & seize, cops’ subjective intent = irrelevant
  • Program-wide pretextual inventory/admin searches can be problematic, but that’s not what happened here
  • Ibarra (9C) – Cops had dog waiting where pulled D over for speeding

Clearly pretextual, but no 4A violation under Whren

WARRANT REQUIREMENT: (84)

  • Functions:
  • PC = threshold of proof to protect against unjustified searches & seizures
  • Oath/affirmation = accountability & establishes public record of pre-search knowledge
  • Specificity = protects against arbitrary searches
  • At least the location & thing(s) looking for
  • Magistrate = neutrality prevents errors & ensure reasonableness
  • Broadly, reduces perception of unlawful/intrusive conduct
  • Johnson– CI said opium in hotel & could smell in hall; Cops followed smell to room, knock-&-announce, shuffling, then D opened door & let cops in; Cops told D he was under arrest & said would search room
  • No PC to arrest until entered room, so search violated 4A
  • D’s consent = submission to asserted authority, not waiver of right
  • Could’ve gotten warrant, but didn’t

No warrantless searches unless no time for delay b/c flight risk, transient search location (car, e.g.), evidence destruction/removal (fumes are uncapturable)

  • Griffin– If PC not req’d for entry (like admin searches), warrant can’t be req’d either b/c it must be based on PC
  • Obtaining Warrant: (90)
  • PC = “fair probability”
  • To search: Substantial basis for finding fair probability under totality of circumstances (Gates)
  • Important Considerations for Tips:

Whether described future acts of 3Ps (Draper, Gates)

Whether cops corroborated at least some details (Gates, White)

  • Draper– Tip accurately describing D & predicting when would arrive by train carrying heroin in future = PC b/c description, arrival, etc. can be verified
  • Aguilar-SpinelliTest: Affidavit must provide sufficient facts to assess (1) Validity of CI’s opinion & (2) CI’s reliability
  • If falls short, consider whether CI tip + independent corroboration = as trustworthy as tip that would pass Aguilar w/o corroboration
  • I.e., more than bald assertion of reliability & some indication about why CI’s assertions are legit
  • REJECTED INGATES
  • Gates (US 1983) – Anonymous letter alleging Ds were drug dealers who bought in FL, detailing their m.o., what was in trunk, that drugs in basement, who Ds were, and where they lived; Cops verified name & addy, followed to FL similar m.o., got warrant w/ affidavit & letter, found everything alleged
  • Rejects Spinelli 2-prong test & uses totality of circumstances

PC only if magistrate has “substantial basis” for finding “fair probability” under “totality of circumstances”

  • More than affiant’s ipse dixit
  • Plenty of evidence supporting PC here, including future acts of 3Ps
  • White: Don’t overrule Aguilar-Spinellitest of credibility & reliability
  • Brennan:PC req’s assurance info obtained reliably by credible person
  • Stevens: Letter lacked indicia of credibility & reliability b/c got several details wrong; Magistrate didn’t know about suspicious return trip until after signed warrant

GROUNDS FOR STOP – REASONABLE SUSPICION: (232)

  • Based on Terry, but has broadened beyond its facts & holding
  • Very fact-based determination
  • Definition:
  • Particularized & objective basis for suspicion, under totality of circumstances (Cortez)
  • “Fair possibility,” whereas PC is “fair probability”
  • Cops’ individual subjective intent = irrelevant (Whren, Ibarra)
  • Important Considerations:
  • Reliability of CI tip (White, JL, Heard)
  • Crime in area (Arvizu, Trullo, Barron-Cabrera,Wardlow)

Flight in high-crime area = per se RS (Wardlow)

  • Cops’ expertise (Arvizu, Trullo)
  • How rote cop’s description sounds (Rodriguez)
  • Investigating felony (Hensley)
  • Anonymous tip? (see below)
  • Insufficient:
  • Mere presence in high-crime area (Wardlow)
  • License plate from drug source state (Beck)
  • Race alone (Manzo-Jurado, Uber, Weaver)
  • Anonymous Tips:
  • Test:
  • Gates applies, focusing on indicia of reliability:

Predicting future acts (White, Gates)

Familiarity w/ CI (JL, Adams)

Whether tipped info indicates knowledge of crim activity (JL)

Corroboration by cops (JL,White)

Face-to-face tip (Heard)

  • Even if not Gates, RS if:

Imminent threat to safety (Wheat, Hicks)

Emergency (Hicks)

  • White–Tip that D leaving apartment in specific car, driving to motel w/ case full of coke; Cops saw car leave & head in motel direction, but didn’t see case; Stopped & searched; Found case in trunk after D consented to search
  • Close, but RS under Gates b/c CI predicted future acts & cops corroborated most details
  • Stevens: Only corroborated info = completely innocent & consistent w/ commuting
  • JL– Anon tip that black guy in plaid had gun at bus stop
  • No RS b/c less indicia of reliability than in White

No basis in cops’ own observations

Unlike Adams, unknown informant, w/o rep & potential responsibility

Accurate description of person shows no knowledge of crim activity

  • No firearm exception b/c slippery slope

Maybe sometimes so dangerous that can avoid Terry (bomb, diminished privacy expectation, e.g.), but not here

  • Kennedy: Could be other indicia of reliability, like similar-sounding voices, risking anonymity
  • Wheat(8C)– Tip of erratic/drunk driving = sufficient RS to stop b/c imminent threat to public safety
  • Unlike gun possession, constant threat
  • Hicks (7C) – Tip of guy beating up woman; Cops responded, stopped D & found gun
  • Permissible b/c emergency, risk to public safety, & undermining usefulness of 911
  • Can’t delay 911 response times by assessing credibility
  • Heard (11C)–Woman got in argument w/ guy at train station; Told cop D had gun; Cop stopped D & found gun, but woman gone when he went back
  • Face-to-face anon tip = inherently more reliable than phone b/c can observe demeanor & credibility
  • Quantum of Suspicion:
  • Winsor (9C)–Illegal to search 40 hotel rooms 1-by-1 b/c 1/40 is too small to support PC, though sufficient for RS
  • Maybe PC by end b/c odds increase
  • Car Stops:
  • Arvizu(9C)–Hispanics in van on backroads avoiding BP, kids waiving awkwardly w/ high knees, etc.
  • RS under totality of circumstances
  • Barron-Cabrera(10C)–RS for Ryder truck on rarely-travelled road & 9/11 of second to see driver & passenger when driving in opposite direction
  • Defer to trial court re: credibility of cops & Ds
  • Trullo (1C) – Cops saw suspicious car in “Combat Zone”; Stopped & ordered driver out when car took guy 2 blocks, then let him out to walk back
  • Barely RS b/c high crime area, cops’ expertise, & suspicious actions
  • Bownes: Where must driver let passenger out to avoid RS?
  • Rodriguez(9C)–Ford Ranchero, typical description of activities + car known to have seat to conceal illegals
  • NO RS b/c cops’ descriptions all sound the same & fits 100s/1000s of law-abiding citizens
  • Hensley – Terry applies to investigating completed felonies, too
  • One cop/dptmt can make stop if another asks for help
  • Profiles:
  • Courts find use of profiles irrelevant b/c it depends on totality of circumstances anyway
  • Determination is always case-by-case, so irrelevant whether facts happen to match profile
  • Berry (5C) – Ok to use drug courier profiles b/c just admin tools
  • Presence of each characteristic has no significance re: RS
  • Match doesn’t automatically establish RS
  • Sokolow (US) – DEA stopped D based on profile
  • RS b/c focus is on overall degree of suspicion, not whether each fact is innocent/guilty
  • Stricter rule would hamper cops
  • Marshall: Reflexive profile use risks catching innocent citizens
  • Beck (8C) – Cop stopped CA car in AR b/c CA = drug source (considered 6 states drug sources)
  • No RS – there are millions of law-abiding citizens that fit this
  • Wardlow (US) – Mere flight = sufficient for RS in high crime areas
  • Mere presence = insufficient, but can be one factor
  • Consistent w/ Royer b/c unprovoked flight ≠ merely going about own business or refusing to cooperate
  • Terry accepts stopping innocent people sometimes
  • Stevens: Lots of legit reasons for running – per se ruledoesn’t make any sense
  • Race:
  • Ok to use for descriptions – this is just a question of whether anomalous presence of one race is sufficient for RS
  • Race alone/primarily ≠ RS
  • Must just be one factor
  • Manzo-Jurado (9C) – No RS to see 6 unfamiliar Hispanics at high school football game not mingling
  • No rational inference of immigration status from football game attendance
  • Uber(MN)–No RS where white guy from burbs was seen in inner-city neighborhood known for prostitution in madrugada
  • Weaver (8C) – Cops stopped only black guy on LA-KC flight on suspicion of drug trafficking b/c black LA gangs flooding KC w/ coke
  • RS & no impermissible discrimination b/c race only one factor considered

CONSENT:

  • Requirements:
  • (1) Capacity to give it &
  • Must be really significant incapacity (extremely wasted, drugged, young, retarded, etc.)
  • (2) Voluntarily given, under totality of circumstances
  • Aka, no coercion
  • Antecedent illegal invasion that caused consent generally invalidates it
  • Burden on gov to prove it (Bumper, Schneckloth)
  • Considerations:

Knowledge of rights (Schneckloth, Drayton, Watson, Robinette, Gonzalez-Basulto)

Voluntariness of custody (Gonzalez-Basulto, Mendenhall, Royer)

Coerciveness of procedures (Gonzalez-Basulto, Mendenhall, Royer)

  • Honest promises ≠ coercion (Duran)

D’s cooperation (Gonzalez-Basulto, Mendenhall)

D’s education & IQ (Gonzalez-Basulto)

D’s believe evidence will be found (Gonzalez-Basulto)

  • Insufficient:

Acquiescence to claimed authority (Bumper)

  • Schneckloth – Gov need not prove D’s knowledge of right to refuse to consent b/c test is voluntary consent, not waiver

Consider totality of circumstances, & knowledge of right is just one factor

Serious impediment to req cops to inform of right to refuse

Drayton– Applies Schneckloth to bus searches

Watson– No need to warn re: consents or prove D knew could refuse were consent given on public street after arrested

Robinette– Applies Schneckloth to motorists after initial stop ends

  • Bumper– Burden on gov to prove free & voluntary consent

Req’d more than mere acquiescence to claimed authority

  • Mendenhall – Voluntary consent in airport when cops returned ID & license, politely asked all questions & told D that could refuse
  • Gonzalez-Basulto (5C) – Factors to consider:

(1) Voluntariness of D’s custodial status

(2) Coerciveness of police procedures

(3) D’s cooperation w/ cops

(4) D’s awareness of right to refuse

(5) D’s education & intelligence

(6) D’s belief that no evidence will be found

  • Duran (7C) – D consented b/c cops said would get warrant if she didn’t

No coercion b/c cops really did have sufficient PC

Maybe if it was an empty threat

  • Prescott (9C) – Can’t use refusal as evidence against D
  • Price (7C) – Totality of circumstances  “sure” in response to question of whether D minded if cop looked in car was consent
  • Didn’t complain during search
  • Cops routinely win the he-said-she-said credibility battle
  • Heath (8C) – Tough to overturn trial court’s credibility determination unless extrinsic evidence to contradict story or so implausible that cannot be believed
  • 3P:
  • 3P consent suffices if 3P has apparent authority
  • Reasonableness standard – cop must inquire further if circumstances so require (Dearing)
  • Present & objecting Co-T overrides 3P consent (Randolph)

Cops can avoid this intentionally as long as don’t cause Co-T’s absence (Groves)

  • Frazier – Joint bag user’s consent = sufficient b/c assumption of risk & ridiculous to inquire into that
  • LL/T
  • LL can consent to common areas, but not individual apartments
  • Co-T can consent to shared areas, but not private

Matlock– Housemate has actual authority to consent b/c assumption of risk

Rodriguez – GF consented & let cops in, but no longer lived there; Cops didn’t know

  • Consent = valid if reasonable to believe 3P has authority
  • If circumstances more ambiguous, cops must ask if still live there

Dearing (9C) – Live-in babysitter lacks apparent authority to consent to search of employer’s bedroom

  • Cop should’ve asked about extent of sitter’s authorized access

Randolph – Co-T’s consent = insufficient if present & objecting T refuses, unless exigency

  • Roberts: Why does T win? Why not Co-T?
  • Groves (7C) – Ok for cops to intentionally wait until D leaves, then gain Co-T’s consent b/c don’t play active role in securing absence
  • Scope:
  • Presumed limit = what reasonable person would understand search to entail
  • Consenter can further limit scope of consent anyway he wants

Ambiguity is resolved against consenter

  • Destructive searches exceed scope (Jimeno)
  • Unreasonable to touch genitals in public (Blake)
  • Reasonable to open paper bag in car after general consent to car search (Jimeno)
  • Unreasonable to search computer when looking for assault evidence (Turner)
  • Blake (11C) – D consented to search of his person in concourse; Cop touched his genitals & felt drugs
  • Exceeds scope of consent b/c reasonable individual doesn’t understand public search of person to include touching genitals
  • Jimeno – Consent to search car includes consent to search paper bag therein if objectively reasonable to interpret consent like that
  • Opening paper bag = reasonable, unlike busting open locked briefcase
  • Marshall: General consent is ambiguous at best, so cops should specifically request permission to search “car & all contents/containers”
  • Turner (1C) – D consented to allow cops to search home for signs that stabbing suspect there or left evidence of presence; Cop looked through computer files & found child porn
  • Exceeds scope b/c reasonable person would’ve only understood that cops looking where intruder could’ve hastily disposed of physical evidence of assault
  • W/drawal:
  • Consenter can w/draw at any point before cop gains RS/PC
  • Must be clear & explicit
  • Carter (DCC)–Can’t use w/drawal itself as basis for RS
  • Can gain RS if manner of w/drawal = suspicious

EXCLUSIONARY RULE:

  • No one likes the rule, but it still applies
  • Offensive to crime control model b/c focuses on cops, not D’s guilt
  • All evidence discovered as direct result of unconstitutional search/seizure = inadmissible (Mapp)
  • Balance costs v. benefits to apply:
  • Benefits: Deterrence
  • Costs: Setting guilty free; Loss of system legitimacy; Alleged increase in crime rate
  • Limits:
  • Only applies to case-in-chief in crim trials
  • Ok to use in grand jury
  • Ok to use for impeachment
  • Must have standing to challenge
  • Doesn’t apply if cops reasonably relied on legislation (Krull)or apparently valid warrant (Leon, Sheppard)
  • LeonSheppard–Objectively good faith reliance on apparently valid warrant = sufficient to admit evidence in case-in-chief b/c nothing to deter (exclusion doesn’t punish magistrate who issued faulty warrant)

Not req’d by Const (just enforcement of 4A), so do cost/benefit analysis

Brennan: Part of 4A is exclusion of illegally obtained evidence b/c wrapped up in getting evidence in the first place; Court exaggerates costs b/c only lost prosecutions you never should’ve had & artificially diminishes benefits, which exceed mere deterrence

  • Should simply use better systemic training for police departments
  • Krull – Cops searched pursuant to state statute allowing warrantless search; Statute later declared unconstitutional

Admissible b/c cops acted objectively reasonably & nothing to deter

O’Connor: Incentivizes promulgating unconstitutional laws

  • Doesn’t apply to good faith clerical errors (Evans, Herring)
  • Evans–Court clerks failed to update system w/ quashed warrant, but nothing to deter by excluding

Critical test under Leon = deterrability

Ginsburg: Computers are too new & widespread to issue broad rule yet

  • Herring– Police clerk failed to note recalled warrant

Good faith exception applies b/c unintentional & innocent conduct

  • No indication of widespread errors

Ginsburg: Exclusion is the only effective remedy for 4A violations

  • No routine practice of updating database here, so should encourage that

Breyer: Evans distinguished judicial error from police, & we should follow that

  • Standing:
  • Standing only if have legit expectation of privacy in area searched (Rakas, Salvucci)
  • Ownership alone gives standing to object to seizure, but not to search unless legit expectation of privacy (Powell)
  • Legit Expectations For:

Overnight guests (Olson, Carter)

Users of another’s car w/ keys & permission (Lopez)

  • No Legit Expectations For:

Business transactions (Carter)

Visitors to home (Rawlings)

Car passengers (Rakas, Carter)

Knowing possessors of stolen car (Tropiano)

Absent car owner

  • Can object to seizure, but not search (Powell)

Driver in violation of rental agreement (Boruff)

Owner who disassociates self from searched object (Boruff, Mangum)

  • Rakas–Passengers who don’t have 4A privacy interest in car have no standing to challenge search of it
  • Burden on D to prove standing
  • Jones just means person can have enforceable privacy right in place other than own home
  • White: Jones was an effective bright-line rule & this eliminates deterrence of car searches when multiple occupants
  • Salvucci– Jonesautomatic standing rule is overruled – must have legit expectation of privacy in area searched

Possession of seized good = insufficient to demonstrate legit expectation of privacy in searched area

D can constructively possess good, but not be subjected to 4A deprivation

  • Rawlings– Visitor to 3P’s home lacks standing b/c no legit expectation of privacy in that home
  • Focus on legit expectation of privacy, not ownership
  • Payner– Court can’t exclude otherwise admissible evidence under supervisory power merely b/c unlawfully seized from 3P not before court
  • Carter– No legit expectation of privacy when present in apt for short time to bag coke & no other connection
  • Unlike Olson, not overnight guests
  • Ginsburg: Should deter cops from searching invitees
  • Carter (6C) – Suspicious van in Memphis, different stories for driver & passenger
  • Passenger can challenge seizure of person, but not search of car b/c would’ve been discovered even if he was let go

Shaving kit & change of clothes in front of van ≠legit privacy expectation in back