Criminal Procedure Outline I - Part 4

A. Confessions

1. Voluntariness
   1. Hector (A Slave) v. State → determination of whether confession is made freely and voluntarily = matter for judge not jury
   2. Due Process Aspect
   3. Chavez v. Martinez → the ‘process that is due’ for a terrorist about to kill millions may be different than regular criminal
   4. Colorado v. Connelly → crazy guy believes he either confesses to murder or will have to commit suicide per God. Col. Sup. Court = it was coercive to take confession ; SCOTUS = NOPE, this is chill (GOOD)
   5. Spano v. NY: Spano is ‘derivative citizen’, 25 years old, and was subjected to extremely long interrogations where he was denied access to his attorney, not given food or drink, and psychologically subjected to best friend (cop) interrogation → NOT DP; TOC. Relevant factors
      1. (1) Foreign born
      2. (2) No history of criminal behavior
      3. (3) Little education and emotional instability
      4. (4) Subjected to CX by prosecutor w/o his attoney (refused permission to see him)
      5. (5) Wee hours of night
      6. (6) Non stop
      7. (7) Psychological warfare
   6. Arizona v. Fulminante → Confession of child murderer/rapist was coerced b/c of physical threat of violence that remaining in prison posed. Man would do anything to save his own life
   7. SCope:
      1. (1) 5th is broader than DP → protects against more scenarios
      2. (2) When violation occurs → right not to be coerced = infringed at moment coercion happens; 5th = slippier b/c
         1. (a) Kastigar v. United States: use and derivative use-immunity → implicit violation only occurs if compelled testimony is used
         2. (b) Chavez v. Martinez → compelled testimony = no violation bc martinez not forced to testify
   8. Involuntariness Factors:
      1. (1) Ppl like Spano (no crim history, no education, surrendered, immigrant)
      2. (2) Youth
      3. (3) Mental incapacity
      4. (4) Police methods

B. Miranda v. AZ: specific requirements set out for establishing knowledge of 5th rights:

1. Warning Itself:
   1. Must be warned you have right to remain silent
   2. Anything said can + will be used against you;
   3. And warned you have right to attorney (even appointed)
   4. ADDITIONAL:
      1. (1) Must be given opportunity to express those rights
      2. (2) May exercise those rights at any time during interrogation
      3. (3) May waive those rights but nothing can be used against you w/o voluntary waiver
2. Pushback:
   1. Harris v. NY: uncounseled statements can be used for impeachment purposes
   2. Michigan v. Tucker: warning itself doesn’t mean constitutional right (just a factor in analysis)
   3. NJ v. Portash: Coerced statements, as opposed to Miranda, ALWAYS 5th violation
3. Narrowing Miranda:
   1. NY v. Quarles: officer is given description of armed suspect. Upon Terry stop and frisk finds empty holster and asks where gun is. Gets it and then reads Miranda and arrests the man → no Miranda violation b/c of a PUBLIC SAFETY EXCEPTION → gun loose is dangerous in grocery store so needed to find it before Miranda
   2. Oregon v. Elstad → Guy admits in his living room he did something and then police arrest, take to station and read miranda and go over details → no ‘fruit of poisonous tree issue here b/c Miranda is not a constitutional violation = not a poisonous tree. Pre Miranda statements suppressed but post = gucci
   3. Dickerson v. United States → Congress cannot overrule Miranda → Miranda is a ‘constitutional rule’ and therefore w/o change to constitution there is no congressional regulation
   4. MIssouri v. Seibert (NOT IN POWERPOINT) → Basically, plurality reasoned that TOC warranted no statement (check notes)
   5. TRAFFIC STOP = NOT CUSTODY/INTERROGATION: Berkemer v. McCarty → when the guy made statements during traffic stop = not an arrest, this would be ridiculous. Statements made at station house = not warned = not allowed
   6. INTERROGATION = any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject = here that wasn’t found even though it was a convo between officers re: handicapped girls + shotgun used in robbery
4. Waiver
   1. No express waiver needed
      1. (1) NC v. Butler: where Butler was provided w/ a written waiver form after Miranda warning and he refused. Then proceeded to give inculpatory statements → nothin said express waiver is necessary = chill af
   2. Waiver Implied From:
      1. (1) Silence
      2. (2) Understanding of rights
      3. (3) Course of conduct indicating waiver (TOC)
5. Invocation of Rights→ Under 5th
   1. Edwards: waiver of right to counsel, once invoked, is not done by showing D. continued answering questions BC INTERROGATION MUST CEASE WHEN EXPRESS REQUEST FOR ATTORNEY IS MADE UNLESS SUSPECT “INITIATES” CONVO
      1. (1) Oregon v. Bradshaw = initiation occurs only when an inquiry from a suspect can be fairly said to represent a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation
   2. Davis → MUST BE EXPRESS → must say “I want a lawyer” not “Maybe I should have lawyer”
   3. Berghuis → right to silence and counsel = same invocation = express
   4. Minnick v. Mississippi: guy requests counsel and then after weekend officers resume interrogation = violation
   5. MD v. Shatzer → 2.5 years elapsed between invocation and second waiver/request/incriminating statement = unanimous court says 2 weeks = coverage

A. Difference btwn 5th and 6th

1. 5th = must expressly waive right to counsel
2. 6th = right to counsel need not be invoked & EVERY REASONABLE PRESUMPTION AGAINST WAIVER

B. Scope:

1. Illinois v. Patterson: did post-indictment questioning w/o attorney violate 6th? NO b/c D. was sufficiently aware of his right to counsel (warned twice w/ Miranda) and chose to continue anyways → waiver was found to be voluntary
2. Massiah: applies to indirect and surreptitious interrogations used as work-a-rounds to 6th Amend → guy was released on bail and gave incriminating statements to informant cohort. (could not be used against him)
3. Brewer v. Williams: Burial speech case w/ terrible facts → this man did not waive counsel b/c he clearly wanted counsel (went to great lengths) and this burial speech was used as a way around that.

Analytical Attack Sheet:

1. Is this the action of a government actor? (or where Gov. is prompting the action?) No = no 4th
2. Is this an action against someone “in the Nat’l community of the United States”? No = no 4th
3. Is there a physical trespass? No = possibly no 4th, see #4
4. Is there a REP? (Subjective+Objective Ex. of Privacy) No = no 4th
   1. a. Exceptions to REP: false friends, third party, dog sniffs, aerial surveillance, thermal imaging
   2. b. Factors to consider: Place intruded, lawful vantage point, method/mode of intrusion
5. If REP, was search “reasonable”? Yes = no 4th
6. Arrest = was there a warrant?
   1. a. No = was there PC? No = invalid/ 4th violation
7. Search = was there warrant?
   1. a. No = Was there PC?
      1. No = was there exception? (Exigent, SILA, Automobile, Container, Plain View, Inventories)
         1. No = 4th violation