LS - Crim Pro 3

" A statement that can rsnbly be construed to be an expression of a desire for counsel, but is ambiguous in that a rsnbl officer in the same circumstances would have only understood only that the suspect might be invoking the right to counsel, does not require the police to cease questioning. However, Clarification of ambiguous request is highly encouraged"

" [Shatzer/inmate]. All invocations are dissipated 14 days after being released from custodial interrogation. Shatzer involved questioning of a diff crime, analysis might be diff it involved same crime"

"Triggered when formal proceedings are filed. If one cannot afford an attorney, one will be appointed (Gideon). It is offense specific – only attaches to those offenses for which D has been arraigned. Two offenses are the same if the statutory elements of one are included in the other."

"Miranda is sufficient to inform you of your 6A right [Patterson]. Waiver must be knowing/intelligent/voluntary. In court proceedings, D must be made aware of dangers and disadvantages of self-representation [Faretta]. D cannot prospectively invoke your 6A right to counsel, and invocations are offense specific"

"D must show = (1) attny’s performance was deficient when measured against an obj standard of rsnblness + (2) D was prejudiced in a sense that there was a rsnbl probability that, but for counsel’s deficient performance, the result of the proceeding would have been different"

"Once the right to counsel has attached, the 6A render inadmissible statements “deliberately elicited” from a defendant in the absence of counsel, unless there is an express waiver of the constitutional right - don’t want police to surreptitiously circumvent 6A RTC. Undercover Police can listen passively."

"After RTC attaches, D must be given Miranda. If D properly waives, the police may interrogate even if the defendant invoked counsel at his first judicial appearance. However, in custodial settings, Edwards applies and invoking your 5A right means that questioning must immediately cease.  Montejo = problem for Ds who invoke 6A rights in non-custodial environments.  Police can approach those individuals, encourage wavier and conduct interrogation even after a D has lawyer."

"Montejo held that bc Miranda/Edwards protects against badgering, a waiver will typically suffice to waive rights during custodial interrogation.  When a D is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering.  Montejo suggests it is the D’s responsibility to avoid being badgered.  What police actions would constitute badgering in 6A remains unclear."

1) Try and argue it is custodial interrogation 2) Argue waiver wasn’t knowing/intelligent/voluntary 3) Argue police against police badgering but balance with lack of coercion when not in custody

"(GESSS) Standing, Good Faith, Evidence from Statement, Statements outside home after warrant w/out arrest, ""self-incriminating"" statements that actually incriminate others."

"Lacking a possessory interest in or close connection to the place to be searched, Ds will not be allowed to make a 4A violation claim (Fleeting and insubstantial connection) Look at Connection to premises, purpose for being there, duration of stay, social guests almost always ok. 4A right is a personal right."

Exclusionary rule does not apply where officers executed search warrant in GF [Leon] (Unsure how this applies to bad arrest warrant) No GF when 1) Franks (police mislead magistrate) 2) Where magistrate abandoned neutral/detached 3) warrant lacks any reasonable PC 4) Warrant is facially deficient.

"Seems to be a policy that the court doesn’t want to punish the police for court mix ups. It wouldn’t serve the deterrence purpose of the exclusionary rule. Examples, if magistrate makes mistake in warrant, if police rely on mistake in court database, if police rely on wrong info from another PD."

" [Patane] Physical evidence obtained as a result of a Miranda violation is admissible b/c 5A protects against self-incriminating statements being introduced at trial, whereas physical evidence speaks for itself"

" [Harris] Where police have PC to arrest, but they make arrest inside home w/o warrant, exclusionary rule does not bar statements made by D outside the home"

"Inevitable discovery, independent source & attenuation"

Factual attenuation & Interest based Attenuation

"Look for separate facts leading to PC and a warrant. [Murray] As long as the police rely on independent evidence in obtaining warrant after warrantless search, the taint has dissipated. Magistrate can’t know about illegal entry, evidence from illegal entry can’t be used, police would have sought a warrant even w/o knowledge of evidence"

[Nix]Gov must show by POE that they would have discovered the evidence without the constitutional violation. Christian burial speech vs. search party

" [Wong Sun] Did the evidence that D wants to suppress come about by means sufficiently distinguishable to be purged of the primary taint? Always a but for situation. Look to factors such as (FLIC) Flagrancy of violation, Length of time/closeness in time, Independent act of free will (look for coercion), Consent to a search. Also Watch for Patane/5A violation!"

"Miranda warnings by themselves do not attenuate the taint of an unconstitutional arrest, but they are a factor to weigh "

Knock and Announce [Hudson] Would suppressing the evidence deter police misconduct? Attenuation is only applied where deterrence benefits outweigh substantial social costs. The cops were already there and would have access to the information anyway. D can file a civil suit against police.

" [Elstad] – To determine whether Miranda advisements delivered midstream can attenuate previous un-Mirandized statement, consider whether suspect would see it as a separate interrogation: Overlapping content of statements, Timing and setting of 1st vs. 2nd, Diff in location/police personnel, Degree to which 1st round was continuous with 2nd round, Completeness/detail of questions asked and answered in 1st round"

"[Seibert] – Where police employ deliberate question-first practice, curative measures must be taken to ensure that a rsnbl person in the suspect’s situation would understand the import and effect of Miranda warning/waiver: Substantial break in time btw pre-warning statement + warning, OR Additional warning that explains the likely inadmissibility of the pre-warning custodial statement"