Vikas Didwaniawinter 2009

Vikas DidwaniaWinter 2009

General

Always think about perverse effects – how police will shift resources, etc.
Local variation, especially whenever there is a standard, as for PC
Scalia 2-step test for 4A inquiries (Houghton, Atwater)
When look for officer intent: inventory searches, in narrow Miranda context (Mauro)

Analysis

Does the 4A apply to this encounter?
If no, inquiry ends
If yes, did cops have sufficient justification to search / seize? (PC + W)
If no, exclusionary rule
If yes, did cops carry out the search / seizure in a reasonable manner?
If no, exclusionary rule
If yes, we’re home free.

Remedies

Exclusion – see Mapp
Four purposes: judicial integrity, deter LEO, avoiding strategic behavior, avoiding breeding contempt for law (if govt not following its own laws)
But deterrence sole defense now. Leon.
Limits
Good faith exception – if LEO obtains a defective W, evidence gathered will not be excluded if: his reliance on the W is objectively reasonable (meaning W is not clearly defective) + LEO acts within the scope of the W (Leon)
See also Execution of Ws, standard of review below
As with the QI inquiry, don’t necessarily need to decide objective reasonableness here before deciding the 4A question (of whether actually had PC)
Recent expansion: isolated & attenuated negligence in not updating a police dep’t arrest W database was not grounds for excluding evidence from a search incident to arrest (Herring)
So the exception is about LEO deterrence (Leon) and culpability (Herring). Really must have both to argue for exclusion.
Standing – person seeking suppression must have been searched / seized—their privacy interests must have been infringed (Carter)
This may lead to strategic behavior (Payner)
Fruit of poisonous tree – suppress only evidence obtained because of a 4A violation, but that can include direct and indirect products of the invasion and can include physical as well as oral statements
But for causation: But for the violation, would not have obtained the evidence
Independent source exception – evidence was obtained through independent source, so illegal search did not cause them to find it
Inevitable discovery exception – when evidence would’ve been discovered anyway, can let it in, even if its discovery a result of the violation. Very hypothetical – if LEO would’ve come across it
Proximate cause: whether subsequent evidence was too attenuated form the original violation (Ceccolini)
Often about intervening acts of free will
Impeachment – can still use the evidence
Damages
QI – immune when conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Creighton.
Decide whether 4A violation first. Then reach QI issue. But up to lower court now to decide. See Saucier.
For appropriate level of generality, see Creighton.
SI
Municipal policy
Injunctions
Usual – real and immediate threat of the specified injury to the particular plaintiff seeking injunctive relief. See Lyons.
§ 14141 with the DOJ – can get injunction to eliminate practice of unconst conduct
Criminal prosecutions
Admin / political remedies

Does the 4A apply?

To whom – part of the national community or otherwise have developed sufficient connection with the country
To what (search) – 2-part Katz test
Physical effects and oral statements (Katz)
Open fields (Oliver) vs. Curtilage (Dunn)
Flying over curtilage is not a search as long as altitude at which public travels regularly. Ciraolo, Riley.
Broader reading of Ciraolo: not a search whenever matter open to public observation (as argued in Bond)
Dog sniffs (Place, Caballes) vs. Squeezing luggage (Bond)
Knowingly exposed to public
Talking to wired co-conspirator (White)
Curbside garbage in opaque bags (Greenwood)
Court doesn’t seem to buy “shared privacy” idea. But of course has to with letters mailed
Traveling in car on public road, no privacy in movements (Knotts, Karo)
Tech + knowingly exposed: tech that’s not in general use to get info about constitutionally protected area is search. Kyllo.
Privacy fleeting as more invasive tech becomes more popular
Maybe privacy rule is that if really inquisitive private party could get the info, then it’s not a search. See Riley, Karo.
To what (seizure)
For persons:
First: intentionally used the means that caused the stop—willful restriction of freedom of movement(Brower)
Second, two categories:
Physical force applied to an individual, or a show of authority to which the individual yields, meaning chase is insufficient (Hodari)
Reasonable innocentindividual would not feel free to leave or otherwise terminate the encounter (Bostick)
And no need to inform person of right to refuse (Drayton)
See Mendenhall for factors to consider
Traffic stops:
Unnecessary prolongation during a traffic stop (Caballes)
Both driver and passenger are seized (Brendlin)
Of effects: interfere with possessory interest (Karo)
If there was search / seizure, then see if government invaded that interest. If so, 4A applies

Probable cause

Broad definition: (1) probability (level of belief); (2) of any crime or evidence of a crime
Court’s definition:
Objectively reasonable LEO
Subjective intentions play no role in PC analysis (Whren)
Considering totality of circumstances known to this LEO, including just corroboration of informant’s allegations (Gates)
Would have a fair probability or reasonable ground for belief
…that crime or evidence of crime.
Remember, any crime, regardless of what cop thought was arresting for (Devenpeck)
Mere suspicion is not enough
Corroboration of innocent activity + bare allegation by anon tipster (Gates)
Spinelli factors for informants:
Basis of knowledge
Informant’s credibility / veracity, based on his track record
And also corroboration (independently investigative proof of assertions), even of completely innocent (but probably not innocuous) conduct
Effect: bald assertions by very trustworthy informants may be OK, but not by cops (Gates, White concurrence)
Particularization: any belief of guilt must be particularized with respect to person to be searched / seized (Ybarra)
Unless in car, then assume common enterprise (Pringle)
Unless singling out of a suspect (Di Re)
Standard of review
If W sought, defer to magistrate’s judgment of PC, UNLESS
First: knowing or reckless falsity of affidavit; second: non-neutral magistrate; third: affidavit doesn’t provide magistrate with substantial basis for determining PC (Leon)
If no W sought: de novo review, but still due weight to inferences of trial judge AND police (and clearly erroneous for the facts). See Ornelas
No clarity on how much magistrates should defer to cops

Warrants

PC prevents unjustified searches and W prevents arbitrary searches
Three parts:
Oath: facts in affidavit giving rise to PC
Innocent falsehoods will not invalidate W
Perjury or reckless disregard will be stricken
But unstricken portion may still be sufficient for PC—de novo review here though
Magistrate: detached and neutral
Particularity: description should be particular enough to permit an officer with reasonable effort to ascertain and identify the place intended
But can have catch-all phrases like “any other evidence” of that crime
Anticipatory Ws: 2 part test (Grubbs)
PC must now exist that triggering condition will be satisfied in future
PC of finding evidence if triggering condition takes place
BUT warrant need not specify triggering condition
Execution of Ws
In general: conduct of cops must be related to the objects of the W authorizing intrusion
But if W overly broad, then still OK if cops stayed within that broad scope and officer’s failure to realize the overbreadth was objectively reasonable (Garrison, cops went into wrong apartment)
Knock and announce rule: before entering closed premises, KA and receive actual refusal or wait out the time necessary to infer one, UNLESS
Cops must have reasonable suspicion that KA under the particular circumstances would be dangerous or futile, or it would inhibit effective investigation (destruction of evidence) regardless of property damage
Exigency is TOC inquiry (Banks)
If no exigency, then property damage may make reasonable wait time longer
Sneak and peek warrants
Third party ride-along: presence must be related to objectives of W (Wilson)
Also implicates staged perp walks
Exceptions
Three step process: (1) W required; (2) unless fits one of the exceptions noted below; and (3) if it doesn’t, state bears burden of arguing for a new exception
Exigent circumstances
Warrantless search must end once the exigency ends
Four types: (1) public safety / protective policing (Mincey, Brigham City, OJ Simpson), (2) fleeing suspect (Hayden, Welsh), (3) destruction of evidence (Mendez, Welsh, McArthur)
For public safety: objectively reasonable basis to believe that occupant seriously injured or imminent threat of injury
Note that still a balancing test. Even if evidence will be destroyed, have to balance state interest with level of intrusion
Plain view: if cop is where he has a right to be (e.g. sidewalk) and sees evidence of crime in plain view (e.g. drugs thru window), then cop may seize that evidence w/o warrant if officer can gain lawful access to object
Evidence of crime: if cop has PC to believe that it’s evidence of a crime (Hicks)
Automobiles: scope of warrantless search defined by object of the search and the places in which there is PC to believe it may be found (Acevedo)
When there is PC to search car, police can search entire car and any container in car w/o needing individualized PC for each container
And there is no distinction based on ownership
Remember, Court talks about mobility but really cares only about privacy
I think: if PC that drugs in car, then can search anywhere in car where drugs may be found. If PC to believe stolen painting, then can only search parts of car that may have stolen painting
Arrests: W req depends on where arrest takes place (home or public). Does NOT depend on seriousness of offense
If outside home: as long as have PC and statutes allow it, can arrest (Watson, Atwater)
If inside home: need arrest W but do not need search W for home (Payton)
But ONLY when believe suspect is within home can they enter and search for the suspect
But if arrest will be in third party’s home, then need search W for that home (along with arrest W for suspect) (Steagald)
CAN exclude evidence resulting from unlawful arrest (p.511 n 18)
Post-deprivation remedy: if no W, then D may assert his right to judicial determination of PC w/in 48 hours (McLaughlin)
Officer’s motive for arrest irrelevant (Whren)
Arrests w/o PC: allowed in rare circumstances, such as for material witnesses (Awadallah)
Searches incident to arrest: search arrestee’s person, including all containers thereon, plus the grabbable area (Chimel, Robinson)
This is rule. No PC, no RS, no W necessary. As a matter of course.
Protective sweeps into 2 categories (Buie):
For areas immediately adjoining (such as closets in the room) – do a cursory sweep without any additional suspicion (same as grabbable area)
For additional areas not immediately adjoining – must have articulable suspicion that area harbors person imposing danger
Of automobiles:
May search passenger compartment and glove compartment of the vehicle and any content of the containers found therein, but NOT the trunk of the car—basically the lungeable area (Belton, Thornton)
Remember, if find drugs, then probably have PC to search the rest of the car
And it doesn’t matter whether cop made contact with person while he was in or next to the car (Thornton)
But arrest is required, citation is insufficient (Knowles)
Inventory searches – needs to be routine practice, i.e. if they impound and they create systematic and routine inventory for purpose of protecting peoples’ property then ok to use evidence collected (Burtine)
And can’t be motivated by desire to obtain evidence
Consent: voluntary, no coercion or duress, as determined by TOC (Bustamonte)
Use Samaha’s consent chart!
Government bears the burden (Bustamonte) by POE ()
Knowledge of right to refuse not required, but is a factor (Bustamonte)
Third party can grant consent to property (Bustamonte) when police reasonably believed that such party had authority over the premises, even when no such authority existed (Rodriguez)
Co-occupants: physically present co-occupant’s refusal governs (Randolph)
One co-occupant can consent if others away (Matlock)
Scope of consent: what an objectively reasonable observer would think consent extended to (Jimeno)
But subject can always specifically delimit however
Can give away consent ahead of time, at least for parolees (Samson)

Reasonableness alternatives

Stop and frisk (Terry)
Brief investigative stop on reasonable suspicion that crime is afoot
Brief = whether the police diligently pursued means of investigation that was likely to confirm / dispel their suspicions quickly (Royer, not 15 mins, Sharpe)
No go if less intrusive means available to accomplish goals (such as using dogs instead of rifling through suitcase) (Royer)
Stop = not custodial arrest or seizure (Dunaway)
Crime afoot = not just armed robberies, anything (Royer)
Reasonable suspicion = articulable facts + rational inferences + LEO experience(Terry); but more than inarticulate hunch (JL sort of); suspect flight is sufficient (Wardlow)
Pat down on reasonable suspicion that the person is armed and dangerous, limited to places reasonably necessary to find a weapon
Just a pat down. Can’t put hands in pockets unless feel something suspicious. At that point, have PC and can investigate further
Plain feel: if LEO is lawfully patting someone down for weapons but it becomes immediately apparent that what they are feeling is contraband then they can seize it
BUT cop cant manipulate an object to figure this out—must have immediate PC to believe it is contraband from basic pat down for a weapon (Dickerson)
Can also look through any containers the person has with him (Place)
Can also ask for identification (Hiibel)
But reason for stop can’t be to ask for ID (Brown)
Automobiles
Ok to order driver and passenger out of vehicle (Mimms, Wilson)
OK to search parts of passenger compartment where weapons may be hidden if cops have reasonable suspicion that suspect dangerous (Long)
Me: I don’t think this applies to trunk probably if based on lungeable area?
Profiling and discretion
Two ways to stop bad profiling:
Stopping pretext stops, but Court doesn’t go there (Whren)
Invalidate vague criminal laws (Morales)
Special needs: avoid some combination of PC, W, and particularized suspicion
Administrative inspections: need W and PC, but not particularized (Camara)
And reasonable legislative or administrative standards for conducting an area inspection must be satisfied (Camara)
Inspections of closely regulated businesses: 3 part test (Burger)
Court has said: never limited suspicionless searches to special needs or programmatic purposes (Samson)
2-part inquiry:
Is there a special need?
Pervasive problem, beyond just general law enforcement, that can’t be addressed through traditional means
Primary purpose can’t be general LE, since otherwise could just get around rule by always adding in a special need (such as checking sobriety) (Edmond)
Special needs with: schools, probationers, public employees, prisoners
If so, then balancing:
Strength of govt interest – really serious public interest, such as drunk driving
Level of intrusion – how disturbing intrusion is.
Same inquiry as what’s a search
Objective AND subjective
Objective – look at what cops are actually doing (just brief stop, etc.)
Subjective – fear and surprise
Efficacy – how well does this practice further the govt interest
Plus look at amount of discretion (Prouse)
This cuts against (ii) though. Less discretion (more intrusion) is better. Response: targeting harm is especially intrusive
But note that the roadblocks with the lowest hit rates below were upheld
Roadblocks: whether cops may seize group of drivers and passengers in a particular location at particular time w/o any reason to believe that particular driver / passenger has violated the law
Just look at the facts here and the 2-part inquiry above
Use of force
4A governs not only when cop may seize but also how. Furthermore, all excessive force claims MUST be analyzed under 4A
Deadly force – reasonable if meets 3-part test (Garner)
PC that suspect poses significant threat of death/serious physical harm / committed a crime involving infliction/threatened infliction thereof
Necessary to prevent escape
Warning if feasible
Note: I think also limited to felony suspects
Non-deadly force: reasonableness inquiry (Graham)
objective reasonableness under all the circumstances, including:
Severity of the suspected crime
Whether suspect poses immediate threat
Whether he is actively resisting arrest or in flight (suspect culpability)
But not LEO subjective motive
Car ramming (Harris)

POLICE INTERROGATION

Coercive interrogation: accuracy, free will, fair play

Voluntariness: “shocks the conscience” or “will overborne” or p.836. Unclear, but TOC and analogize to the cases, and look to Bustamonte.

Miranda: exclude all statements made by suspect stemming from custodial interrogation, unless certain warnings are given (per se rule)

Warnings: right to remain silent, any stmt will be used against him, to have presence (not just consultation) of attorney, either retained or appointed (see p.820)
Custodial interrogation: questioning initiated by LEO after person has been taken into custody or otherwise deprived of his freedom in any significant way
Custodial:
Not Terry stops (Berkemer)
Familiar surroundings, felt free to leave, restraint on movement
Doesn’t matter whether actually under arrest, state of mind of cop irrelevant (Stansbury)
Interrogation: express questioning or its functional equivalent
Functional equivalent: words or actions by the police that the police should know are reasonably likely to elicit an incriminating response from suspect (Innis)
But focus on suspect’s perspective
And thin skull rule applies. If know suspect especially susceptible to appeals to conscience, that counts (Innis)
Conversation with undercover agent, even if direct questioning, is not interrogation since no coercion (Perkins)
But remember, voluntariness test still applies (Fulminante)
Routine booking exception – but may not ask questions that are designed to elicit incriminatory admissions
Suspects may waive these rights at any time, provided waiver is voluntary, knowing, and intelligent
Any time: meaning before, halfway during, and so on
But heavy burden on govt to show waiver, especially b/c govt has all the info
Fact of lengthy questioning will indicate waiver was involuntary
Suspects may invoke these rights at any time
Can be done in any manner, no formula—but must be unambiguous for counsel
If invokes his right to remain silent
Test is whether scrupulously honored
More than 2 hour interval, by another officer at another location about another crime and give fresh warnings (Mosley)
If invokes right to an attorney, no longer can question him or try to get him to waive until he gets his lawyer (Edwards)
ONLY way to waive is if he initiates the meeting / conversation
But trickery is okay
Initiation = reinitiated further conversation, reasonably interpreted by cop as evincing a willingness and desire for a generalized discussion about the investigation (Bradshaw)
Standard is same as waiver: knowing, intelligent, voluntary (Wyrick)
Invocation must be unambiguous for counsel
Reasonable officer would know the suspect was requesting counsel. So if reasonable officer thinks suspect might be invoking counsel, can continue to question him (Davis)
Legislatures might devise other fully effective means to inform
Court hedging, don’t really know what they’re doing. So allow for alternatives.
But know that they don’t want to be looking for coercion in every case, since eats up resources and often can’t tell (done behind closed doors)