Criminal Procedure - Outline Part 22

Waiver AFTER Successful Invocation of the Right

• If a suspect does invoke with sufficient clarity either his right to remain silent or right to counsel, can his later words or conduct be deemed to “undo” that invocation?
• Policy Reasons Behind Undoing Invocation of Rights → If the courts make it too easy for the suspect to undo the invocation, it will create incentive for the police to “badger” the suspect to change his mind
• Edwards v. Arizona (1981) – Undoing a 5^th Amendment Right to Counsel Invocation
  • Rule → An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police
    • Response to Later Questioning – waiver will NOT be established by the mere fact that the suspect responded to later police-initiated interrogation (even if that interrogation was preceded by a new reading of the Miranda warnings)
  • “Initiates the Conversation” Waiver Test → Once a suspect indicates a desire to have a lawyer, any subsequent waiver of that right will not be measured by the usual tests for waiver (i.e., the “knowing and voluntary” standard); instead, the only way the suspect may waive a previously-asserted desire to have a lawyer present at interrogation is by initiating the conversation with the police
  • Bottomline: If the D invokes his right to an attorney, then the police may not question him again until he has consulted with an attorney unless:
    1. an attorney is present” (Miranda 5^th A right to counsel during custodial interrogation)
    2. Defendant initiated the conversation

• TEST: Reasonable Expectation Of Privacy in area searched or items seized
• Cars: Owner → Has standing if present; Driver → ALWAYS has standing; Passengers/Non-Owners → No standing
• Rental Cars: Someone in otherwise lawful possession and control of rental car has a REOP in it even if rental agreement does NOT list him as authorized driver
• NO Vicarious assertion → 4A rights are PERSONAL rights
• Overnight Guests: Have REOP and therefore standing
• Temporary Guest Commercial Purposes: NO REOP and therefore NO standing

1. Was the actor a private citizen or the State?

1. Private citizen? → Was the private citizen acting as a “deputy” to the State?
   1. Yes? → Go to #2
   2. No? → The Constitution does not protect against private conduct
2. The State → Go to #2

1. State actor who engages in unreasonable S&S
2. State actor who directs private party to engage in unreasonable S&S
3. 4A does NOT apply to private party acting alone who engages in S&S → Always allowed in (no suppression)

2. Is the victim a US citizen?

1. Yes → Go to #3
2. No → Does the individual have (1) a sufficient connection with the US community and (2) accepted some societal obligations? (US v. Verdugo-Urguidez)
   1. Yes? → Go to #3
   2. No? → Constitution only protects US citizens

3. Did a “search” occur?

1. Was there a trespass into a constitutionally protected area? (4^th Amendment only protects “person, home, and effect”)
   1. House? → “The house is man’s castle” – very likely a search; Go to d.
   2. Curtilage? (Dunn Factors) → likely a search
      1. Proximity of area claimed to be the curtilage of the home?
      2. Whether area is included within an enclosure surrounding the home?
      3. Nature of the uses to which the area is put?
      4. Steps taken by resident to protect the area from observation by people walking by?
   3. Open field? → No constitutional protections
   4. Car? → not constitutionally protected but depends on where car is
   5. Public Place? → Usually no expectation of privacy; go to b.
2. Katz + Jones Test – Did the individual have a reasonable expectation of privacy?
   1. Was there (1) a physical trespass for (2) the purpose of obtaining information (monitoring)? (Jones/Jardines)
      1. Yes? → Search
      2. No? → Go to Katz Test
   2. Katz Test:
      1. Did the individual have an actual (subjective) expectation of privacy? (always yes)
      2. Does society (objectively) recognize this as a reasonable expectation?
   3. Key Katz Language: What a person knowingly exposes to the public, even in his own home/office/car, is NOT subject to 4A protections; but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected
3. “Monitoring” Situations
   1. Wiretapping? → Requires Title III Order – requires greater standard than probable cause + the exhaustion of other investigative techniques
   2. Telephone Pen Register? → Requires Pen Register Order – lower standard than probable cause
   3. Undercover Agent? → Individual assumes the risk/misplaced trust; not a search (Hoffa)
   4. Bugged/Unbugged Informant? → no 4^th Amendment protection for “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it” (White)
   5. Banking Information → government may subpoena bank for info without showing PC (Miller)
   6. Aerial Surveillance? → If police can view from public area and doesn’t interfere with use of property; not a search
   7. Thermal Scan? → If gov. uses device NOT in public use, to explore details of home that would have previously been unknowable without physical intrusion, the surveillance is a search and presumptively unreasonable w/o a warrant (Kyllo); Was it more than naked-eye surveillance?
   8. Electronic Monitoring/GPS Tracking? → When NO physical trespass but monitoring for info: Short-term is OKAY (not search); Long-term (even on public roadways) is SEARCH (28 days is example of long-term) (Jones)
   9. Beeper? Was beeper in house? No = not a search (Knotts); Yes = Search (Karo)
   10. Dog Sniff? (Human sniff is never a search)
       1. House? → Trespass; an officer is allowed to: (1) approach door; (2) knock on door; (3) wait briefly; and (4) leave if nobody answers (anything more than this is trespass)
       2. Apartment? → If individual cannot (1) bar access to the apartment building, nor (2) exclude people from the common areas, then not a search (Nguyen)
       3. Airport? → no search; airport is not constitutionally protected area; only search if look into bag (Place)
       4. Car/Traffic Stop? → no search; car in a public area is not constitutionally protected (Caballes)
       5. Bottomline → If the police, standing in a place they have a right to be, use a dog to perform an odor test that merely determines whether contraband is present or not, no search
4. Exceptions?
   1. Plain View Doctrine? → Even where the devices used to gain a view of the D’s property are somewhat more sophisticated, the SC will uphold their use if: (1) the view takes place from a location where the police have a right to be (public property) and (2) info obtained could have been gotten from “plain view” surveillance executed without the special device
      1. Plain Smell → an officer does not have to avert senses to anything suspicious that they can legally perceive from a public area
   2. Third Party Doctrine? → Any information voluntarily conveyed to a third party removes all reasonable expectation of privacy; thus police don’t need warrant to get info you conveyed to 3^rd party
   3. False-Friend Doctrine? → Anything an individual conveys to another party no longer has expectation of privacy; no protection for wrongdoer’s misplaced trust
   4. Physical Manipulation of Effect? → an individual does not have the expectation that his effect will be felt in an exploratory manner, i.e., an agent’s physical manipulation of a bag violates 4^th Amendment

4. Was there a “seizure”?

a. Seizure Test: (1) Meaningful interference (2) With an individual’s possession interest in property

b. Objects Subject to Seizure (Four Categories)

1. Contraband → illegally possessed items
2. Fruits of a crime (stolen property/money)
3. Instrumentalities Used in Commission of an Offense (e.g., weapons, cars)
4. “Mere Evidence” – an item of value to police solely b/c it will aid in apprehension/conviction of a person for an offense (blood stained shirt)

c. Seizure of People (Terry)

1. General:
   1. All arrests = seizures
   2. Not all seizures = arrests (e.g., Terry stop)
   3. Not all interactions with the police = seizures (e.g., consensual interactions)
   4. Constitutional test = whether the stop and/or frisk was reasonable
   5. Not a probable cause requirement – lesser standard
   6. Terry Balancing Test = Individual’s Personal Liberty vs. Officer Safety
2. Steps of Police Encounter to Arrest
   1. Consensual Encounter → No 4^th violation
   2. Terry Stop-and-frisk → seizure but not arrested; pat-down = search; no PC needed
      1. 4^th Amendment Triggered when:
         1. Terry Stop - Officer restrains freedom to walk away with reasonable suspicion a crime is afoot or committed = seizure
         2. Terry pat down with reasonable suspicion to believe the suspect is armed and dangerous = search
   3. Arrest → seizure; PC is required
3. Terry Doctrine
   1. Terry-Stop Rule
      1. Requirement: Reasonable suspicion to believe that a criminal activity has occurred or is about to be committed
      2. Purpose: prevent crime, i.e., if you see smoke, there might be fire
      3. Very brief
      4. Two steps:
         1. Pat down outside of clothing feeling for hard objects that might be weapons;
         2. Only if a potential weapon is felt, can the officer reach into the pocket/article of clothing
   2. Terry-Frisk Rule
      1. Requirement: Reasonable suspicion to believe that suspect is presently armed and dangerous
      2. Purpose: officer safety
      3. Limited Search Scope:
         1. Only outer clothing using only palms of hands
         2. Only can search for weapons
         3. Can’t ask individual to empty pockets
         4. Can’t be looking for contraband
   3. Terry Doctrine AFTER Crime Committed
      1. May stop an individual if police have a reasonable suspicion grounded in specific and articulate Lee facts, that a person the police encountered was involved in or is wanted in connection with a completed felony (Hensley)
         1. Does not address completed MINOR offenses
   4. Seizure v. Non-Seizure Encounters → When does a seizure of a person occur, i.e., required degree of interference?
      1. Definition of Seizure: “A person has been ‘seized’ within the meaning of the 4^th Amendment only if, in view of all of the circumstances surrounding the incident, an (objective & innocent) reasonable person would have believed that he was not free to leave. (Mendenhall)
         1. Following examples of circumstances that “might indicate a seizure, even where the person did not attempt to leave:’
            1. the threatening presence of several officers;
            2. the display of a weapon by an officer;
            3. some physical touching of the person; or
            4. the use of language/tone of voice indicating that compliance with the officer’s request might be compelled
            5. Other Factors:
               1. Whether the police give back identification, ticket, or personal belongings back (Royer)
         2. DO NOT care about the subjective thoughts and beliefs of officer UNLESS they are communicated to Defendant
            1. MUST go through every step of police encounter to determine at what point a seizure occurs
      2. A Fourth Amendment seizure occurs where the police exercise physical force over a subject or where a subject submits to an officer’s show of authority. (Hodari)
         1. Moment of seizure: Freedom of movement is restrained by:
            1. physical force (unless breakaway)
            2. submission to claim of authority)
      3. Pursuit by Police – Does a chase itself constitute a “seizure”? – until the suspect submits to the chase (by stopping), there is NO seizure. There will not be a seizure until two things happen:
         1. 1. the suspect stops in response to the chase or to the police orders; and
            2. a reasonable person in the suspect’s position would believe that he was not free to leave once stopped
         2. Rule: where a show of authority is made to a suspect, and the suspect does not yield, no seizure takes place.
            1. Exam Rule: a 4^th A seizure occurs where the police:
               1. Exercise physical force over a subject; or
               2. where a subject submits to an officer’s show of authority
            2. “An arrest requires either physical force or, where that is absent, submission to the assertion of authority.” (Hodari)
         3. Application: Hodari rationale probably applies beyond the “chase” situation:
            1. officer says “freeze” or fires a warning shot;
            2. officer, driving a police car, puts on his flashing lights or his sirens; or
            3. in an airport setting, a narcotics agent approaches a group of passengers w/ his gun drawn, and announces a “baggage search”
         4. In any of these situations, if the suspect flees, tries to dispose of evidence, or does anything other than immediately submit, his actions will be admissible even though the initial encounter was made at a time when the police had no probable cause to make a stop or other seizure