Con Crim Pro I

-Report sent to P's Office
-P considers strength of the case, files a complaint to include each count and when committed
-D is arraigned before a magistrate in a few days where charges are read and asked to enter a plea
-Preliminary Hearing, if plea of not guilty
-Indictment, unless waived by D
-Arraigned by court judge and enter plea; trial is set
-Pretrial motions filed
-Can engage in plea bargaining
-Trial
-Sentencing, if found guilty
-Appeal can be filed
-Oral Argument
-Appellate case is decided

Issue from Question Raised
-Issues that come from rule of law
--Issues that come from rule (elements)
--Issues that come from rule (elements)
-Issues that come from rule of law
REPEAT
Pointers:
-briefly state the law for each issue, then apply the facts
-spend time on the issue of which reasonable people would disagree, presenting both sides
-conclude and give rationale

Past regular employee that offers information about a crime
-court looks to see if CI is truthful, reliable, the motivation
-court looks to see if it was unreasonable to rely on CI or if there is bias
-information from CI is not hearsay b/c it is being offered for the effect on the cop

-PC/warrantless
-CI gave reliable information in the past and offered information in this case giving detailed information of Draper, location, description, address, activities
-Officer stopped Draper, arrested him, found drugs
-warrant was not necessary b/c sufficient PC existed and under the narcotics law, not required

-CI was a dog
-if there are sufficient records to show the accuracy of the dog, the dog can be treated as a reliable CI
-or if insufficient records, and investigation must show the reliability and accuracy

-No PC/Warrant
-landmark case b/c 4th amend was applied to state, rather than just federal officers. 14th amend was used to apply federal constitution to states
-officers obtained warrant used to search for narcotics in D's home
-court found that the affidavit used to get the warrant was insufficient since no information was offered as to why the CI was credible and reliable
-court found the warrant should not have been issued, therefore reversed the conviction
-2 part test for CI
--is the CI reliable?
--if so, did the officer act reasonably by corroborating the information?

-Whiteley v. Warden: information from another police officer to another can support probable cause. not doing so would hamper law enforcement
-State v. Moore: court found that officer’s sense of smell can be probable cause (smelling burning weed from a car)
-US v. Reed: in order to rely on a closely related charge, the officers must show that the charge can reasonably be based on the same set of facts that gave rise to the arrest and that the officer acted in good faith during the arrest

-PC/warrant
-officer used anonymous letter as basis for affidavit for the warrant
-2 pronged determination for PC of the affidavit
--adequately reveal the basis of knowledge of the letter writer and
--provide facts sufficiently establishing either the veracity of the affiant's information or the reliability of the informant
-court accepts totality test b/c he believes rigid rules will not help officers do their job
-while the letter alone was insufficient for PC, the corroboration of the letter made sufficient evidence for PC for a warrant
-court gives deference to officer's for their experience, training, and the fact that they were present

-reliability of information or hunch
-knowledge that is transmitted from that, and
-office corroboration
--corroboration is usually most important

-No PC/Warrantless
-Officer saw in a high crime neighborhood Appellant and another exchange money and an unknown object without seeing any other suspicious activity
-Appellant was arrested and searched without a warrant. Ended up being in possession of crack- cocaine
-Appellant moved to suppress, but denied b/c it found that the officer’s training and experience was relevant in making the probable cause determination
-To be constitutionally valid, an arrest must be based on probable cause, which is determined on the totality of the circumstances, which requires the court to determine whether the knowledge of the officer at the time of arrest was reasonably trustworthy and sufficient to warrant a man of reasonable caution in the belief that there was a crime being committed
-Factors to be used in the consideration: time, street location, use of a street for commercial transactions, number of transactions, place where small items are kept by sellers, movements & manners of parties
- officer's training and experience is not a factor, but rather guides how the court is to view the PC validity
-court found that PC was lacking, violation of 4th amend. and reversed conviction

-officer usually had to at least have observed the criminal activity or used an informant, corroborated and didn't get a warrant
-govt bears the burden of proof to show that there was PC. shows preference for warrants
-D files motion to suppress, burden is on him. argues that seeing 4 transactions doesn't mean that it is illegal. the prosecution puts on evidence
-P would much rather proceed without a warrant than with one. when officer fills out info for warrant, it limits it to paper. without a warrant, the cops can testify to more and the P can practice with the cop more than with the warrant. warrant is likely to be found insufficient b/c how much time does an officer have to actually put down all the details in a coherent fashion? more likely in a warrantless situation

-the court looks at the warrant itself
-warrant is presumptively valid and reasonable and with PC, therefore the D bears the burden of proof to show that the arrest was unlawful
-D has a more difficult case. D has to look for mistakes in reality v. letter D puts the cop on the stand and does evidence

-officers entered home without a warrant b/c they thought a bomb suspect was in the home
-found illegal porn in the house from an unlawful search
-exclusionary rule is to exclude evidence that was obtained unlawfully
-question after this case: if the ER is intended to be a deterrent rule, why is the remedy to let the criminal go free?

-"dropsy" testimony case (where officer testifies that D dropped evidence & officer picked it up to search it
-court found that such testimony should be scrutinized. if it seems inherently unreal, it should be rejected
-required officers to become more detailed to prevent PC and ER issues

-D was charged for violating a city ordinance for leaving scene of accident without leaving information
-nothing requires dismissal of charges b/c arrest was illegal

-rule of evidence
-evidence is excluded when it is not reliable, prejudicial, etc
-evidence is unreliable b/c it violates the 4th amend- this is the presumption under which this City of Pasco was decided
-never dismiss charges b/c of ER

-CI of unproven reliability informed an officer that 2 people were selling large quantities of cocaine
-based on this info, officers started an investigation and corroborated information
-facially valid warrant was issued
-D filed motion to suppress, district court granted motion to suppress in part concluding that affidavit was insufficient to establish PC, but did not suppress all the evidence b/c none of the D had standing to challenge all of the searches
-4th amend contains no provision precluding the use of evidence obtained in violation of the 4th amend
-4th amend is intended to be a deterrent for officers
-whether ER is imposed is a separate issue from whether the rights of the D were violated
-marginal or nonexistent benefits of suppression in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion
-suppression is needed when the judge was misled by information in an affidavit on which he relied to grant the warrant upon which the officer knew were false or would have known to be false if but for reckless disregard of the truth
-balancing test of costs and benefits of reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that it should be admissible
-good faith exception is created
-Leon exception to the rule: officer, relying on good faith, of the facially valid warrant issued by the magistrate, the evidence will not be suppressed
--facially warrant- needs to be specific as to what they are looking for, location, people, crime, and an affidavit
--no requirement to scrutinize the warrant for PC
-Exceptions to Leon Rule
--affiant lied
--rubber stamp/corruption (lying, fabrication)
--so lacking in indicia of PC
--facially invalid
--fruit of poisonous tree (will deal with this at the end of the semester)
-PC for searches is now substantial basis (overcomes more likely than not rule) for reasonable belief that there was evidence at the place to be searched

-PC to arrest 2 people for robbery. searched hotel room where they were found (but far away from where robberies took place)
-the fact that there is PC to arrest a person for a crime does not automatically give police PC to search his residence or other area in which he has been observed in for evidence of that crime
-has to be sufficient nexus
-too much distance and time had passed in this case

-rehearing for 1984 case
-reevaluating whether the evidence should be suppressed in light of US v. Leon
-reasonable for officer to think affidavit was sufficient to create PC to search
-falls within good faith exception to ER in Leon; suppression is not warranted

warrant issued on reckless or knowingly false information
warrant issued by magistrate who is a known rubber stamp for police
warrant issued is invalid due to simpler error in determining PC

-officer saw D trying to retrieve something from impounded truck, called to check for outstanding warrants, founding 1 active warrant in neighboring county
-officer followed and arrested D
-search after arrest revealed weed
-warrant for arrest was pulled 5 months prior, but not updated in county records
-motion to suppress was denied b/c officers acted in good faith and application of ER would not deter
-exclusion only applies when there will be appreciable deterrence that outweighs the costs
-this case violated 4th amend b/c there was insufficient PC to arrest and no independent PC for searching his person
-Herring Exception: Good Faith v. Flagrant and deliberate misconduct
-KEY Rationales
--all cases must be examined to see if exclusion will have an appreciable deterrent effect on officers
--courts should engage in cost benefit analysis of every suppression before granting exclusion

Is that error so bad that it infects the evidence so that it should not be admitted in against the amendment or is it an error that leaves the evidence clean and free of constitutional violations that it can be admitted?
-if there is a break, then it can be admitted
-if no break, then it cannot be admitted

Leon Exception applies if the following are met
-case background
--search warrant case
--officer was acting in good faith
--facially valid
-Exceptions to Leon Exception
--**So lacking of any indicia of PC
--bad faith in the creation of the search warrant itself
---magistrate rubber stamps
---FILL IN

PC Test
-Substantial Basis: beyond a substantial basis, but more than so lacking in indicia for PC

How does a judge determine where on the spectrum PC is on the above spectrum?
-by looking at first cases: Draper, etc -- totality of circumstances, officer training, etc

-agents attached an electronic listening and recording device outside of a public telephone booth from which D placed calls, thought to be placing bets
-what a person does in public is not private
-D make a phone call in a glass phone booth, where he could be seen, but he expected the words he said to be private
-listening was an unlawful search and seizure as he relied on having a private conversation in the booth
-officers did not begin investigation until they had knowledge of the crime; likely a magistrate would have granted a limited warrant for this
-the fact the officers restrained themselves to listening to only D is irrelevant
-few exceptions allow searches without a warrant: hot pursuit or incident of arrest
-expectation of privacy must be exhibited by the person and must be recognized by society as reasonable expectation

-must always begin analysis with "was a search conducted?"
-if so, then subject to 4th amend. if not, not subject to 4th amend.
-if D has a justifiable expectation of privacy and police engage him, there is a search (if there is no PC). if there is no justifiable expectation, the interaction with the police is not a search and therefore no further analysis is necessary
-Jimmy Hoffa Rule: words spoken to anyone, even if close friend, you no longer have an expectation of privacy and is not a search
-Good police work Rules; even if your friend is wearing a tape recorder, and tape is given to police, it is not a search b/c there is no justifiable expectation if stated to anyone
-not a search if friend is wearing a live wire, is an undercover cop, etc
-if it is not a search, court does not care if it was reasonable or not

-police attached GPS to wife's car in MD
-warrant was issued for D's car in D
-warrant expired when it was place on D's wife's car
-no exception to warrant rule. there was no PC to not get another warrant
-reasonable expectation of privacy of not having a GPS put on your car

-No warrant to S&S is required in such circumstances or when govt sends a undercover agent who conceals his identity or when the same agent carried recording equipment
-Police who writes down his conversations with a D and testify concerning them without a warrant authorizing the encounters with the D and does not violate 4th amend
-For constitutional purposes simultaneously recording or transcribing them is seen no different
-If the conduct and revelations of an agent operating without electronic equipment do not invade the D’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or others from transmissions received from the agent to whom the D is talking and whose trustworthiness the D necessarily risks
-recordings are admissible without D's consent

-US v. Davis: undercover agent had videotape in his jacket, D allowed him to come into his house. evidence allowed b/c resident forfeited privacy when activity was exposed inside the home
-US v. Nerber: FBI set up hidden video camera in room. D's entered the room, belonging to a friend. evidence acceptable b/c privacy was diminished when they entered into someone else's room
-US v. Longoria: no justifiable expectation on the assumption to or not understanding a foreign language
-US v. Knotts: person traveling in car on public roads has no expectation of privacy. beeper was placed in drum, consented to by seller, and beeper tracked radio signals from the drum in the D's car
-US v. Dias: no objective expectation in license plates as it is exposed to the public
-Sheler v. Commonwealth: expectation in sole of shoes is reasonable. free from close inspection of the public
-US v. Forrester: no expectation of privacy in addresses to which you send mail; no expectation when calls go through 3rd party

-open fields doctrine: an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home
-found to not be in conflict of Katz
-D demonstrated that he did not want others from coming on his property: gate, sign, told them not to go there. field on visible by air
-court categorized an open field as anything outside of the home and curtilage
--curtilage is the area immediately surrounding the house that are associated with intimate activities
-rule developed (opposite of what you would think after Katz): go ahead and look if it is beyond the curtilage

-landowner was suspected to be killing hawks without a permit
-officers set up camera to catch him
-court found that if the officer can lawfully be on the property, then the camera could be
-the officer in this case could not lawfully be there as it was private property and no warrant was issued, therefore trespass

-State v. Mooney: ok to search the area of homeless person, but not the cardboard box he sleeps in or the duffel bag with his possessions
-US v. Acosta: does not have a justifiable expectation in the hallway outside of apt or the buildings backyard
-State v. Ramaekers: did not commit a search by walking up to D's home
-State v. Rose: did not commit a search by shining a light through window as it was in plain view
-People v. Comacho: officer walking into side yard is a search
-US v. Crapser: not a search if officer knocks and asks to talk

-Proximity of area to the home
-Whether it is included in an enclosure within the home
-How the area is used
-Steps taken to prevent observation from passerbys

-issue of whether aerial surveillance is permitted without a warrant, looking in the fenced backyard within the curtilage of a home
-police surveyed by air b/c of an anonymous phone call stating D was growing weed in backyard
-officer got private plane to corroborate information
-got search warrant based on photographs taken
-found that D had an unreasonable expectation of privacy since the area could be seen by private and commercial flights in public airways
-was viewed by naked eye, therefore not protected by 4th amend
-officers are allowed to use any technology that enhances their own natural abilities to see, smell, or hear
-plain view doctrine: can be used any time officer's feet are where they are lawfully allowed to be

-State v. Holden: neighbor allowed police to install camera to video the suspect. determined not a search b/c it would be no different than a neighbor observing activities with his own eye, even though there is an expectation that police would not constantly monitor activities that are exposed to public view

-officer rec'd info from CI and conducted surveillance of D's home
-officer asked trash collector to separate D's trash and then give it to her
-used this info to get a warrant
-warrantless search and seizure of garbage left at curb would violate 4th amend only if D had manifested a subjective expectation of privacy in their garbage, that society would accept as reasonable
-court found no reasonable expectation as it was voluntarily turned over to 3rd party

-US v. Hederick: D kept trash in driveway in curtilage. found that it was not a search b/c it was in the middle of the driveway, considered accessible to the public
-US v. Redmon: common driveway with trashcans. not a search b/c accessible by neighbor
-State v. Hauser: trash collector gave it police. perfectly fine.
-US v. Scott: FBI reconstructed shredded paper. found to be a search b/c society does not accept it as reasonable for someone to reconstruct shreds of paper
-Commonwealth v. Cabral: officer collected spit from D on sidewalk. not a search b/c it was left on public street
-People v. Electronic Plating: D was charged with putting contaminants in sewer system. officers tested water from pipe below factor. not a search b/c did not have an objectively reasonable expectation of privacy in wastewaters in sewer connection b/c it discharges into a public sewer system

-agents used thermal imager to scan the home to check for high intensity lamps, b/c indoor weed growth requires them
-suspected D was growing weed inside
-based on CI, utility bills, thermal imaging, warrant was issued
-limiting surveillance to non intimate details would be impractical in application. no necessary connection between sophistication of equipment and intimacy of detials
-search is unreasonable without a warrant
-without thermal imaging, could be other explanation of heat (fireplace, tanning salon) and no PC
-found to be unreasonable b/c house is specifically protected so activities in the house are protected unless there is PC and a warrant

-US v. Place: dog sniffing is not a search
-US v. Thomas: dog can sniff in an airport, but not a home without it being a search
-Illinois v. Caballes: stopped for speeding, dog sniffed and alerted drugs in vehicle, did not constitute search b/c it did not continue beyond the time reasonably required to complete the speeding ticket
-US v. Brock: not a search when a dog stood outside bedroom and alerted the presence of drugs b/c the dog only alerted to drugs, not any other activity
-State v. Rabb: dog sniffed drugs walking by residences, this is a search b/c home has a higher expectation of privacy rather than at an airport

-persons, houses, papers, and effects
-this list is completed- no catch all phrase
-items and areas that are not one of the above, the 4th amend analysis stops there

While a search based on a search warrant is presumed to be reasonable, the burden is on the P to justify a warrantless search
-P must prove all facts necessary to come within an exception to the search warrant requirement

Key Requirements
-arrest must be valid
-search must be incident to arrest

-Facts: P was convicted of DUI and arrested a the hospital where he was receiving treatment for injuries suffered in a car accident. At the direction of the officer, blood was drawn, which indicated intoxication and report was admitted into evidence at trial
-Analysis: Blood test constitute searches of persons within the meaning of the 4th amend. In order to search a person after arrest, 2 factors must be considered. 1) Possible immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused 2) Once a search of the arrested person for weapons is permitted, it would be impractical and unnecessary to enforce the 4th amend’s purpose to confine the search to those objects alone. These have little applicability to those searched beyond the body’s surface. Reasonable for the officer in this case to have thought that it was an emergency and no time to obtain a warrant b/c the delay may have caused destruction of evidence. Test chosen to draw blood was reasonable and performed in a reasonable manner.
-Conclusion: search was reasonable, therefore no 4th amend violation

Notes
-PC is measured on reasonable or unreasonable scale
-PC authorizes a search
-Reasonable suspicion authorizes something less than a search (historically is a over the clothes pat down)

Schmerber Exception for Warrant Requirement for Searches
-clear indication of evidence at the place to be searched
-exigency in destruction of evidence
-reasonableness of test
-reasonably performed

-Govt argument: w/e BAC at hospital, must have been higher at time of the accident
-flawed reasoning. can take 4 shots and then drive 10 min without having the alcohol enter your bloodstream and then the BAC would increase as it enters the bloodstream, giving you a higher BAC after the accident, rather than at the time of the accident
-any rule other than the rule in Schmerber makes it likely impossible to prosecute DUI

-Winston v. Lee: Lee was shot and bullet lodged in chest. State tried to force surgery to remove it. Denied request b/c of the medical risk and intrusiveness
-Grier v. State: stopped D for expired license plate. D seemed nervous, was crying, etc. Officers asked him to open his mouth and they saw a baggie full of cocaine. He eventually spit it out when the officers forced him to physically. Held that it was reasonable

-in prison, there is no reasonable expectation of privacy that you will not be seen not naked
-strip searches have always been accepted in order to achieve some sort of safety in the prison
-body cavity has always been treated as a Schmerber search- requiring PC & warrant or exigency
-court has to determine which search is reasonable
-decision not yet made

-Facts: Arrest warrant was issued for D on the basis of burglary of a coin shop. He was arrested, asked if they could search, D refused, but they looked anyway on the basis of lawful arrest. No warrant had been issued. Relatively cursory, except bedroom where the wife was told to open the drawers. 45 min to 1 hour search. Seized several coins, etc.
-Analysis: When an arrest is made it is reasonable to search the person to check for weaponry that may be used as force or as an escape measure. Same rationale can be applied to the general area and For safety purposes. No comparable justification for routinely searching any room other than which the arrest occurs or through all drawers or concealed areas. Such searches may only be under a search warrant, unless an exception is met
-Conclusion: Search of the house went far beyond the D’s person and reach from within which he might have obtained either a weapon or something that could have been used as evidence against him. Unreasonable search. Conviction overturned.

NEW RULE: custodial arrest gives officers the automatic right to search the D (no PC necessary) and the immediate surrounding area (wingspan)
-for safety of officer- anything within reach of the D
-and any other contraband- plain view doctrine. came across the items lawfully, entitled to seize it lawfully
-wingspan- area in which D has immediate control, beyond the armspan (even if someone is a paraplegic)

-Facts: At approx. 11pm, Jenks saw D driving and had reason to believe b/c of a prior investigation that D was driving without a permit due to its revocation. Stopped D. IAW procedures at the police department, Jenks searched D. Felt a package through the coat. Got it from the D’s pocket- crumpled up cigarette box, but felt that they were not cigarettes, so he opened it. Found 14 gelatin capsules of white powder, which he thought to be and later proven to be heroin. Searched the rest of the D and found nothing
-Analysis: Believes that reason for authority to search incident to arrest is to disarm the suspect and to find evidence. Standards traditionally governing a search incident to lawful arrest are not limited to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest was made. Not going to assume that b/c it was a driving violation that the person is any less or more likely to have weaponry on or within the vicinity. Custodial arrest based on PC is reasonable under the 4th amend, a search incident to arrest requires no additional justification
-Conclusion: This is an exception to the warrant requirement and is found to be a reasonable search. Upon finding the package in the pocket, officer was entitled to inspect it and keep the evidence

Notes: public safety doctrine becomes irrelevant in this case. no issue of a gun in the cigarette pkg. more likely that contraband that D is in possession of will be destroyed if not immediately seized. changes rules to safety or other contraband. either or is sufficient to meet the new rule. court is not really analyzing custodial arrest searches as constitutional issue, therefore does not have to be seen as un/reasonable

-US v. Lynch: Upon arresting D, drug agents seized a pager and then got phone #’s from it. Found it to be lawful and compared it to be the same as searching a wallet
-Atwaters v. City of Lago Vista:
Officer saw mother driving children without a seatbelt- an offense in Texas subject to arrest. No need to require officers to balance different situations. Search after lawful arrest may be conducted even if it is a fine only offense

-Facts: Amtrak officials saw D bring a footlocker onto a train. Saw it was unusually heavy for its size and was leaking talcum powder, often used to hide the smell of weed or hashish. Found that they fit the drug profile and relayed the information to federal agents in San Diego, which then relayed it to their counterparts in Boston. When train arrived in Boston, agents brought a dog to detect weed. Sent dog over to them without alerting them and without a warrant. Dog smelled weed. 3rd D came to drive them and before they left, officers arrested and search all 3. Disclosed no weapons, but keys to footlocker were taken. No immediate danger of weapons, took control of the locker and car and later searched it to find weed
-Issue: Whether a search warrant is required before federal agents may open a locked footlocker which they have lawfully seized at the time of arrest of its owners, where there is PC to believe it contains contraband
-Analysis: Once officers have removed the property from the control of the D’s, there is no longer any danger that the arrestee might gain access to seize a weapon or destroy evidence, then the search is no longer incident to arrest
-Conclusion: cannot be viewed as incidental to arrest as it was over an hour later, D's were in custody. Should have gotten a warrant

-Facts: Trooper was driving an unmarked car and passed by another car at an excessive speed. Pulled the car over and 4 ppl got out, one of whom was Belton. Asked to see license and registration, but none owned the car or was related to. Officer smelled burned weed and saw an envelope on the floor marked “supergold” which he associated with weed. Arrested them for possession and separated them to search. Picked up envelope and found weed inside. Searched passenger compartment and found a leather jacket belonging to Belton and found cocaine in one of the pockets
-Issue: When the occupant of a car is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the car in which he was riding?
-Conclusion: When a policeman has made a lawful custodial arrest of the occupant of a car, he may, incident to the arrest, search the passenger compartment of the car. May also examine any containers found within the compartment b/c it is considered to be within the reach of the arrested. Whether open or closed as there is no privacy interest in it. Compartment was in the immediate control of D and search was conducted at time of arrest
-NEW CATEGORICAL RULE: wingspan during a search incident to a valid arrest where D has been removed from a vehicle includes the passenger compartment (for similar fact cases)

-Facts: Gant was arrested for driving on suspended license, handcuffed, locked in the back of a police car while they searched his car and found cocaine in the pocket of a jacket on the backseat. Officers received anonymous tip that drugs were being sold from this address and went there. Person who answered, Gant, said that the owner will be back later. Officers checked and saw that was an outstanding warrant for his arrest. Arrested Gant and 2 others that were there later in the day. After D was secured, search was conducted and found a gun and cocaine
-Conclusion: Found that the search was unreasonable and did not meet the warrant exception requirement.
-Adds: circumstances unique to the car context justifies a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle
-RULE: search can only be conducted of a vehicle incident to arrest if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense for the arrest
-GANT RULE: **PC to arrest gets person and wingspan search**. if person search is conducted and then sent to cruiser, no wingspan search. if near car, get Belton search

-Facts: Conducted routine traffic stop in Alabama that resulted in the arrest of driver and passenger. Both handcuffed and place in separate patrol cars and police then searched Owen’s passenger compartment and found a revolver inside Davis’s jacket pocket. Chimel became difficult to apply due to various interpretations. Belton was no accepted by all courts. Gant developed new bright line rule. search took place prior to Gant rule
-Issue: Whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled
-Conclusion: b/c suppression would do nothing to deter police misconduct in these circumstances, and b/c it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule

-Mapp: states ER
-Leon Exception: valid search warrant executed in good faith
-Herring Exception: good faith/good police work, no deterrence
-Davis Exception: good faith, relying on SCt. precedent (based on the time that the search was conducted)

-Facts: At hearing officer testified that while he was patrolling in plain clothes in downtown Cleveland, cannot pinpoint what he saw, but it didn’t look right based on his 39 yrs of experience . Saw them conferring, walking past a store window, pausing, and walking past again doing the same thing for about 10-12 min then they walked off towards a 3rd who had stopped by earlier and talked with them . Saw the 3 men approaching the store and he stopped them, Id’d himself as an officer and asked for their names. Mumbled something, then officer spun him around and patted him down, felt revolver but couldn’t get it out, ordered all into store, place hands on wall and did a pat down. Found 1 other gun on other D. Went to station and 2 were charged with carrying concealed weapon
-Issues: Whether in all the circumstances on the street encounter, his right to personal security was violated by an unreasonable search and seizure. Whether it is always unreasonable for an officer to seize a person and subject him to limited search for weapons unless there is PC for arrest
-Conclusion: Narrowly drawn authority to allow reasonable search for weapons for the protection of police where he has reason to believe he is dealing with armed and dangerous ppl, regardless of whether PC to arrest exists. More than a hunch is required; specific inferences needed
-“merely hold today that were officer observes unusual conduct, which leads him to reasonably conclude in light of his experience that criminal activity may be afoot and person potentially dangerous or armed, ID’s himself as officer, nothing in the initial stages dispels his reasonable belief for fear of safety, he is entitled to protect himself and the public by conducting a limited search to outer clothing to discover weapons"
-must have RAS of crime that is about to or is happening or in the future, and that he/she is dangerous in order to do a pat down (there was no PC to arrest in this case)
-seizure of person requires RAS of crime; search requires RAS of danger/weapon

-Facts: Officers were in a marked patrol car about 50 yards from the residential entrance around 837pm and observed group come out of an elevator at the projects. Officer testified that attention was drawn b/c a white was with a group of blacks. Never saw a white there in the area at dark or for innocent purposes. Made several arrests of white in the area for narcotics offenses and encountered many that were victims of robberies. Once the group saw the officers they stopped, turned around, went back to the elevator and formed a huddle. Officers called for back up- suspected weaponry or drugs. Got out and approached them. Singled out the white guy who ran, but stopped when called back. Officer pat down D and felt and later seized a pistol; later convicted for possession of firearm as a felon
-Issue: Whether an officer may constitutionally detain a citizen b/c he is a white man who happens to be with a group of black men in a residential area around 8:37pm
-Analysis: In order to legally detain an individual without a warrant, based on suspicious circumstances, the P must establish the specific facts that reasonably caused the officer to believe 1) Some activity out of the ordinary had taken place or was occurring, or about to occur 2) Activity was related to crime AND 3) Individual under suspicion was connected to the activity. Issue with #1 Fact that D was white could raise no reasonable suspicion of crime. Issue with #2 No reasonable suggestion of criminality is found by the fact that it was dark and High crime area does not elevate these facts into a reasonable suspicion of criminality.
-Conclusion: inadequate to seize D. motion to suppress should have been granted
-must have something more than race, officer training/experience, time, high crime, etc- something other than stage setting. MUST HAVE CONDUCT of some sort that appears criminal
-seems like witnesses could have been better prepared

Facts: 8:25pm on October night, patrolling officer received word from his dispatcher that 8 minutes earlier a store had been held up by a black man wearing dark clothing with a silver pistol, finished the robbery, and fled on foot. 15-20 min later, he saw a man that fit the description less than a mile from the robbery and there were few walkers around, so officer thought it may be the robber. Man was stopped, and he complied and saw a silver gun sticking out of the sweatshirt pocket, so officer arrested him
-Analysis: Trial judge thought Terry v. Ohio governed and authorized a brief stop and frisk upon basis or reasonable suspicion of criminal activity or danger. Indeed reasonable basis to stop D in suspecting that he was the robber. Before officer could pose a single question, officer noticed the gun at which point he had PC to arrest. Stop had not yet ripened into a Terry stop, requiring reasonable suspicion to be lawful, when the officer saw the gun
-Conclusion: Reasonable suspicion was not necessary b/c it was a stop that quickly became a lawful arrest
-description was not great, but silver pistol description was important. is that evidence sufficient to have RAS to stop Broomfield? yes, in conjunction with him being found within 1 mi of where the robbery occurred. met the description given, especially considering that few other people were around. if there were 50 ppl within the walking radius, they could probably stop everyone depending on the crime. super dangerous person would allow more ppl to be searched rather than a lesser crime. if evidence of crime is found on one of the people searched (white van in DC sniper case), officer will drop it b/c they wont be successful in court.

-Facts: Agents were at the airport looking for characteristics of people with drugs. Stopped R, Id’d themselves as federal agents and asked to see ID and ticket
Did not match. R told agents that she felt like using a different name. Only in Cali for 2 days. Once agents said they were DEA, she became visibly shaken and hard time speaking. She followed them to the office after he asked if he could ask further questions
Accepted search request. Found ticket from 3 days ago from Chicago to LA with a different name. Female agent conducted search of person; consented to it. Undressed and gave her 2 heroin packets and then she was arrested
-Analysis: Court finds that seizure occurs only when, by means of physical force or show of authority, his freedom of movement is restrained. When it is restrained, 4th amend arises. Does not want to characterize every police encounter with citizens as a seizure. Free to ask questions. No seizure occurred in this case b/c Public place, No uniforms, no weapons, Approached her and identified themselves as federal agents, Asked for id and ticket, not demanded. Because the search of the person was not preceded by an impermissible seizure of her person, cannot be contended that her apparent consent to the search was infected by unlawful detention.
-Conclusion: A person has been seized within the 4th amend only if, in the view of all circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave
-police do not need to say that "you are free to leave"- wants to treat it like any other conversations
-standard: reasonable (innocent) ppl and whether they would feel free to leave or not will determine whether it is a seizure or not
-RULE: (FL v. Bostick) if citizen is in an area where there are no reasonable options for leaving (on public bus). officers asked everyone for ID and ticket. power of the crowd. if everyone is doing it, looks less consensual. being on a bus, there is no reasonable option for suspect to feel free to leave so consent cannot be given
-RULE: if an officer says stop, i need to talk to you, and is trying to seize and the citizen runs, the citizen is not seized at that point. therefore not a constitutional issue at that point. any dropping of drugs or weapons is not a 4th amend issue- considered abandoned property. even if officer did not have authority to say "stop im trying to detain you" if suspect turned and ran and throws drugs, she is not seized even though original stop was unconstitutional

-Facts: At approx. 6:30am, officer was patrolling in an unmarked car in Sunset Beach, an area suspected of drug trafficking; noticed a blue truck carrying an attached camper that was extremely heavy b/c it didn’t sway and was down in the back; with windows covered. Asked Sharpe a few questions, asked for license, registration. Unable to produce registration- said he was doing a favor for a friend. Once officer announced he was DEA, Sharpe became nervous, and he wanted his license back so he could leave. He was told that he could not. D refused entry to the camper; officer stepped on back of truck, but it wouldn’t lower confirming his suspicion that it was overloaded. Smelled marijuana. Removed keys, without permission, opened camper, and saw a number of burlap bags, which he had seen weed in before. Placed D under arrest; went back to the other car and arrested them. About 30-40 minutes elapsed. Took people and cars back to station. Agents took the truck and found 43 bales weighing 2,629 lbs., without a search warrant, selected 8 randomly and had it tested, showing that it was weed
-Issue: Whether an individual reasonably suspected of engaging in criminal activity may be detained for a period of 20 minutes, when the detention is necessary for law enforcement to conduct a limited investigation of suspected criminal activity
-Analysis: To determine whether a detention is too long to be considered an investigative stop, must examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the D. Must consider whether police were acting swiftly in a quickly developing situation. Given the circumstances, the court finds that the agent conducted the investigation in a reasonable and diligent manner
-Conclusion: detention was reasonable
-suspect denied search to officer. so officer must get PC to search- that's why he needs drug dog

-Facts: In the evening, 2 Minneapolis officers were patrolling an area in the city in a marked car. Observed D leaving a 12 unit apt. bldg. previously has seen drug sales in the hallways and have executed several search warrants on the premises
D was walking, but abruptly stopped and went in the other direction when he saw the police. Officer’s attention was aroused and watched him go down an alley. Officer stopped D based on suspicion, evasive actions, and the known crack house. Found no weapons during patdown, but found a small lump in nylon jacket pocket. Officer felt that it was crack in cellophane. Reached in, grabbed it, and it was crack. Arrested and charged
-Whether the 4th amend permits the seizure of contraband detected through an officer’s sense of touch during protective patdown search
-Analysis: If an officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy beyond already authorized by the search for weapons. If the object is contraband, its warrantless seizure would be justified by the same practical considerations as under the plain view doctrine. In this case, after the officer determined there were no weapons, he felt the lump more by sliding it and squeezing it, which was then unrelated to Terry searches for safety and condemned. Officer determined that it was contraband only after doing a further search, not authorized by Terry
-Conclusion: Terry does not give officers the authority to squeeze what was in the pockets. after this case, officers are trained to do pat downs with open palms and flat hands and to also testify that way

-May not be searched without a warrant
-Exceptions
*Exigency
*PC plus exigency: Pc to believe that evidence or a criminal is in the place to be searched and exigent circumstances that give police insufficient time to get a search warrant before searching
-Applications
*Where police believe that there is evidence in the home
*Where police believe that the criminal in the home

-Facts: 8 AM, armed robber entered business of cab company in Baltimore, took $363 and ran. 2 cab drivers, attracted be hearing “holdup” followed the man to 2111 Cocoa Lane. 1 driver notified company of description and that he entered the house, who then passed it onto the police who were heading to the scene. Police knocked, Mrs. Hayden answered, police said that we believe a robber has entered your house and asked to search; no objection. Searched the house and found D upstairs pretending to be asleep. Arrested D. Police heard running water in the adjoining bathroom and found a shotgun & pistol in the flush tank; another officer found a jacket & trousers of the type described being worn by D in the washing machine; ammo and clips were found in the mattress, drawer of bureau
-Analysis: The entry without warrant to search, nor the search for him were valid based on exigency. Cannot be weighed against officer who found the clothes that he was looking for “man or money.” Was looking for weapons and found clothes. Inference that he was looking for weapons is fully justified
-Conclusion: Clothes can be admitted b/c it was found in the pursuit of weapons, money, man
-Warrantless but probable cause- this can be reasonable if there is an exigency
-Probable cause to arrest the suspect, then Officers are entitled to do an incident to arrest search, Includes wingspan area, Includes belton/davis type search

-Facts: On 4/24/67, 2 officers had warrants for D’s arrest and having information that he lived at this particular address, set up surveillance. Believed they saw a narcotics sale. Officer was familiar, had arrested D 2x before. D/driver noticed the officers. D started to go back into the house. Driver shoved something in his mouth, but couldn’t go anywhere b/c the officer’s car blocked him in. Placed them all under arrest, informed D that they were going to search the house and advised him of his constitutional rights. Officers did a cursory inspection to see if anyone else was in the home; a few minutes later the mother and brother of D came home with groceries and informed of the impending arrest & search. Search of rear bedroom revealed a lot of narcotics
-Analysis: Cannot agree with Louisiana SCt in that the search of the rear bedroom was contemporaneous and within the near vicinity of the arrest. State does not meet burden of showing there were exigent circumstances that require immediate search. No suggestion that someone consented to search. Officers were not responding to emergency; nor in hot pursuit.
Goods ultimately seized were not in the process of destruction, nor being removed from premises. No evidence that it would be impractical for the officers to get warrants for search as well
-Conclusion: We decline to hold that an arrest on the street can provide its own exigent circumstances so as to justify a warrantless search of arrestee’s home

-Facts: Undercover agent arranged a buy with McCafferty. She responded that it would be $115 and “we will go down to Mom Santana’s for the dope.” Marked the bills and went to meet her at prearranged location. She took the $, went in the house, and brought out the heroin to agent. Agent then displayed badge, and placed her under arrest and asked where the money way. She said with Mom Santana. Agent told other officers the D had the money and took her to the station. Officers shouted “police” and D retreated. Officers went through open door and catch her, and 2 envelopes of powder fell out. Alejandro tried to get the envelopes, but he was forcibly restrained. D was told to empty her pockets, and $70 of the money marked by agent was found
-Issue: Whether D was in public place during arrest
-Analysis: US v. Watson: held that warrantless arrest of individual in a public place upon Pc did not violate 4th amend. D was visible to the public, so this should be fine.
Next question is whether her act of retreating into the house could thwart an otherwise proper arrest. It cannot. Falls under hot pursuit. Can enter without a warrant if they believe a criminal or evidence was in the house
-Conclusion: Hold that a suspect may not defeat an arrest which has been set in motion in a public place and is therefore proper under Watson, by the expedient of escaping to a private place

-Police officers can lie to people to get them to come out of the house
-Police officers can dress up as domino’s guy to get entry into the house
-Only time they don’t allow this is when the officer is being an officer and is lying about why they are there

-Facts: Wong was on business trip in Glen Burnie and staying at a hotel. Woken up by window breaking, D asked for money and took his wallet
Wong gave description to police and he selected D from lineup. Officers knew D’s address and ID was corroborated by the dog’s scent tracking. Knocked, James Lewis answered the door, no ID was shown, but foster sister corroborated. Officers left, went to the station with Lewis and Wong wouldn’t ID, release Lewis. Checked records and realized lewis & D are same person; called home and verified that Lewis was still there. Learned of 2 other arrest warrants charging D with unrelated armed robberies at the same motel. Went back to house with backup, sister said he wasn’t there, went in with the arrest warrant, took sister and child out, then searched the house and found him in the insulation in the rafters. D complied to come out. Officer recovered a shotgun barrel within the area D was lying, but after he was arrested and removed from the area
-Issue: Whether evidence seized contemporaneously with arrest in a warrantless search of an area beyond D’s immediate control is admissible on the ground that another person might have concealed or destroyed the evidence
-Analysis: Where warrantless search is based on destruction or removal of evidence, surrounding circumstances must present a specific threat to known evidence. To justify the search, officer must reasonably believe that a strong likelihood exists that the removal or destruction of the evidence is imminent. It must be an immediate, urgent, and compelling need to search. Not met in this case. Chimel: mere presence of 3rd person is not an exigency that will justify warrantless search of home- must be justified by immediate and compelling need and not future possibility. Gun was not within D's reach when it was seized b/c he had been removed from premises. No evidence there was an exigency or sister posed a threat of destroying evidence. --Conclusion: Search without a warrant is unjustified
-Distracting the police and trying to evade the police whether it is actually running or just telling them person is someone else is considered hot pursuit
-If the police do something to create exigency then they cannot use it to enter the house

-Facts: Officer spoke to witnesses at bank, met description of a bank robber and his MO. Agreed that it was the same person and dispatched surveillance to his known address. Less than an hour, other officer said that someone meeting the D’s description did another robbery, disarmed a guard, and shot him. Had been convicted prior of this, parole officer confirmed that it was him
History of violent behavior during bank robberies. Witnesses at 2nd bank robbery positively ID’d the D. Saw D come home, open door, but screen closed to the apt, decided to enter. Found D with black object in hand, officer yelled “hold it” and other officer shot him in the arm. Asked D where the gun was and he pointed in the top drawer and officers found it in there. Took D to hospital for treatment, found competent, and officers obtained oral and written consent to search his home and car. Found D’s wife at home, asked for her consent, and received it. Found the evidence between the home and car
-Conclusion: Arrest was not due to exigency, therefore illegal since there is no warrant
-- Court will look at the nature of the crime when it is doing the probable cause of the search to the house an exigency situation. It will matter in both analysis

-if PC to arrest and suspect is in public, warrant is necessary
-if PC to arrest but suspect is in home, there is PC to enter to arrest with a warrant (unless there is an exigency, there is no warrant needed)
*allowed to secure weapons and gather evidence that would be destroyed
*secure D and others (protective sweep)
*plain view doctrine
-exigency (no warrant needed)
*destruction/removal of evidence
(hot pursuit
*emergency/community caretaker

-firemen, EMS, etc serve a community caretaker and have a duty to offer assistance to the community
-court used to express this as an exception to the warrant requirement (fireman does not need PC or warrant to enter house to put a fire out)
-issue of officers b/c they are used to also investigate crimes
-developed test (subjective 3 part)
*does the officer have sufficient facts to constitute a reasonable belief that he is needed inside of a house to assist someone with a physical or criminal problem?
*would other reasonable people reach the same conclusion?
*is the police officers reasonable belief sufficiently related to the place that he is entering?

-Facts: Officers obtained a warrant authorizing a search for drugs and firearms at the home of D; discovered both. Charged for both. Only an issue b/c of the method of entry into the house. When they arrived to execute the warrant, they announced their presence, waited only a short time (3-5 seconds) before turning the knob and unlocking the front door and entering
-Issue: Whether violation of the knock and announce rule requires suppress of all evidence found in the search.
-Conclusion: court found K&A violation was not a big deal in this case. violating K&A is on low end of scale of constitutional violation
-no longer the specifics of the violation (place, time, etc) but rather how much we value the 4th amend violent and how much we think it should be protected
-2 different tests: attenuation doctrine OR cost benefit analysis (cost of D going free vs. police deterrence (no substance test)0
-had warrant, but did not K&A. drugs would have been found by the warrant, then it is attenuated, then not directly tainted and admissible. if the reason the drugs were found as a result of the K&A and not the warrant, it is not attenuated and is a direct taint of violation. essentially just looking for causul connection between

-Facts: Officers set up controlled buy of crack outside of apt complex. Undercover officer watched the deal take place from an unmarked care in a nearby parking lot; called officers to move in saying D was heading to breezeway and to get there before D did. Officers got there just as the door was shut, smelled weed, but didn’t know which of 2 apt D went into to, but went to the one they smelled the weed from. Banged on the door as loud as possible and announced themselves. Heard people inside moving, leading officers to believe that drug related evidence was about to be destroyed. Announced that they were going to enter, and found 3 people in the room, performed a protective sweep in which they found weed and cocaine in plain view. In a subsequent search, they found crack, cash, and drug paraphernalia . Police entered on the right and found the suspected drug dealer who was the initial target of their investigation
-Issue: Whether ER applies when police by K&A cause the occupants to destroy the evidence
-Analysis: Exception to exigency rule- Police may not rely on the need to prevent destruction of evidence when that exigency was created or manufactured by conduct of police.
-PC to arrest: hand to hand buy of crack that took place on the street in front of the officer
-if officers saw the D enter into an apt, it would be lawful. hot pursuit gets you lawful entry if you see or have good information that you know where D went. in this case, you lose sight at the last moment. if officers kick in both doors simultaneously, find suspect in 1 with drugs. lawful entry? have PC to arrest, PC to enter, exigency of hot pursuit- having 2 doors and knowing that suspect is in 1 or other doors. could that this is reasonable.
-b/c officer did not know which door to go in, they decided to go where they smelled the weed. reasonable action. decide based on the smell to knocked on the left door. (if police kick the door in, its a constitutional violation b/c the exigency in this case is gone b/c if D doesn't know police are there, no issue of destruction of evidence or fleeing. threat to kick it down. same issue- violation).
-if they knock and say police- and hear shuffling. once police is said- it will cause shuffling- only norma. not every shuffling will allow police to go in door. the something more of the smell of weed in addition to the shuffling- neither are great, but good combined. until this point, we had hot pursuit to the door. exigency is then destruction of evidence
-police have not created an exigency by knocking and announcing themselves. the exigency was initially started by seeing the hand to hand transaction . if the officers have created an exigency, then cannot then exploit it

-cars fall under the effects doctrine, not house doctrine
-nature of a car is less private than a house
-automobile exception to warrant requirement if there is PC, b/c being a car creates an exigency (even if it is parked or unable to move)
-most likely not ok to search without a warrant if parked in garage or private driveway, unless plain view applies

-locked footlocker in a car is not part of the automobile warrant, unless there is an exigency
-footlocker is seen as in effect and the diminishing factors of cars do not apply to footlockers (not open to public view or subject to regular inspections, intended as a repository for personal effects, and mobility of footlocker does not diminish its protection unless exigency)
-seizure of footlocker is not unreasonable if there is PC. not able to search the footlocker without a warrant unless there is an exigency
-2 competing doctrines: reduced expectation for car and closed containers in cars?- closed containers get protection in cars, but no protection if within wingspan incident to arrest (even in a home)
-good exam question- arrested in a car and chadwick footlocker in backseat. is it protected or okay under wingspan search incident to arrest?

-in order for automobile exception to apply: readily movable and reduced expectation of privacy stemming from use as licenses motor vehicle subject to regulation, that are inapplicable to a fixed dwelling
-the RV in this case could be readily moved, subject to state inspection/registration, parked in public parking lot
-therefore search was reasonable as there was abundant PC and corroboration with anonymous information

-officers had PC to enter apt and arrest a shooter and gather evidence related to the crime under exigency
-issue is that officer saw a stereo that looked out of place and moved them to get the serial to check to see if they were stolen. this was unconstitutional as there was no PC, it was just a good hunch and possibly RAS. cannot move it, but could use dental mirror or blow the dust off, but no physical manipulation permitted unless there is PC

-officers had PC to search brown paper bag that they suspected had drugs in it, that they saw placed in the trunk of a car and then suspect drive off
-paper bag doctrine: lower expectation of privacy in paper bag compared to book bag or purse
-even though there is no other reason to search the car, it can be searched b/c the evidence is now in the car, which creates an exigency b/c it is mobile
-2 competing car doctrines: wingspan search when person is removed and arrested & Carroll doctrine

-Bus stopped as required to for patrol to check the immigration status of all passengers
-Officer squeezed luggage which passengers had place in the overhead storage
-Officer asked D if he could open it after feeling a brick like object. D agreed
-Found meth
-Whether officer’s physical manipulation of a bus passenger’s carry on luggage violated 4th amend
-officer’s manipulation far exceeded the type of touching he would have expected from other passengers
-2 questions: Whether individual exhibited an actual expectation of privacy? He did- in a bag above his seat.
Whether it is one society is prepared to recognize as reasonable? Only touching to move, not for exploration
-This did violate the 4th Amend as it was too much of an intrusion (read in context of Minnesota v. Dickerson)

-Was there consent? If so, was it reasonable, within scope, and not revoked?
-Was there consent? If no consent, then the following will allow entry/search: lowered justifiable expectation of privacy, warrant, PC + exigency
-in determining consent, must be voluntary and not coerced by presence of authority, proximity, tone, loudness, etc
-can consent be based on 3rd party consent?
-look at Mendenhall factors to determine "free will"
-in order to determine consent, was is unequivocal and specific in light of the question asked by the officer? and intelligently?

-hotel clerk gave permission to police to search hotel room of suspected robber
-consent of clerk is not acceptable as clerk does not have authority as 3rd party consent for police to search
-lower justifiable expectation of privacy in hotel room, but limited to cleaning, repair, etc
-hotel room is seen closer to residence than just a snitch providing information to police
-what if maid is a reliable CI and rifles through everything and tells the police what happens? would most likely be ok if not an agent. govt intrusion is the only thing that is gets 4th amend
-if maid goes through your suitcase and reports- it is outside the scope of your implied consent of being in a hotel room
-if maid is regular CI and not paid by police- it will still be okay. this info does not give police sufficient info to get PC and/or warrant. must get corroboration

-person suspected of rape lived with grandmother. officers came to home when suspect was not there
-officers told grandmother that they had a warrant, but never showed it to her and was never produced at trial
-grandmother admitted she gave permission on her own free will in court
-court refused to accept her consent b/c of race relations- black grandmother in the country asked for consent by multiple white male officers. court found it to be coercion
-this is bad police work, they could have gotten a warrant
-the second the officers lied about the warrant, no consent can be made

-During routine patrol, officer saw D’s car with headlight and license plate light burned out
-6 men in the car, driver unable to produce ID
-Only Alcala produced a license and said the car was his brother’s
-Officers asked them to get out of the car and Alcala consented to the search and was helping them
-During search, they found 3 wadded up checks from a car wash; intent to defraud
-factors in determining voluntariness: age, lack of education or low intelligence, lack of any advice of constitutional rights, length of detention, repeated and prolonged nature of questioning, use of physical punishment
-proof of knowledge that one can refuse consent is not needed to prove voluntariness
-voluntariness is to be determined by totality test
-consent is now viewed as exception to warrant requirement
-can use ruse to obtain consent

pg. 526-570 section
INSERT CHART/RE-ORG

-GF gave consent for police to enter to arrest BF for abuse
-GF used to live there, appeared to police that she lived there (had things there, key, etc), but she in fact did not live there at the time of the search
-Court did not determine whether officers reasonably believed that Gail had authority to consent b/c it ruled as a matter of law that a reasonable belief by 3rd party could not validate the entry
-common authority criteria/joint tenancy analysis: lease, contributing to expenses/rent, actually living in apt
-issue with these factors are that the police would not be able to determine these factors until after the fact or relying on the 3rd party's answers
-2 approaches for govt to prove 3rd party consent was valid for entire apt: officers have determined common authority or officers observed and gathered evidence, analyzed reasonably, and conducted themselves reasonably in the apt
-consent given by 3rd party was to enter to arrest, not to search. but since drugs were found in plain view, it was okay
-this is not actually a search when consent was given

-police must act reasonably, but do not have to be right. must be reasonable in assessing and analyze evidence they observe
-if the court does not find a proper waiver of 4th amend that does not necessarily mean that the search was unreasonable. can still have reasonable search even if D did not consent to the search given the circumstances present at the time

-Officer overheard a drug transaction over a public telephone and later observed him make a red turn on red light without stopping so he pulled him over and told him that he was pulled over for traffic infraction and that he had reason to believe D was carrying narcotics in the car and asked permission to search and that D did not have to consent
-D said that he had nothing to hide and gave permission to search the car
-After passengers got out, officer opened passenger side, saw a folded brown paper bag on floor, opened it up and found cocaine inside
-Trial court that the consent to search the car did not include consent for searching the bag
-but reversed
-D did not put any restrictions on consent. Reasonable for officer to search and that consent included searching containers as drugs are usually in a container and not left out in the back seat or trunk
-4th amend is satisfied when under the circumstances it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the car
-D did not try to revoke consent when officer searched the container

-10 yr old child found drugs in home and called police
-child gave consent to enter to get the drugs
-found that the child did not have common authority over property, in conjunction with the fact that it was found that he did not sufficiently understand the consequences of his actions as he did not know that his parents would get arrested

-during domestic dispute, father took son to neighbor's in fear of wife taking son out of the country
-officer asked father for permission to search, he denied it
-officer asked wife for permission to search, she consented and officers searched. found evidence of drugs in bedroom. father revoked consent upon returning to the house with evidence bag
-issue is both had common authority over home
-a physically present co-occupant’s stated refusal to permit entry prevails rendering the warrantless search unreasonable and invalid at to him
-this rule does not apply if co-tenant is not present. presence is determined by if the person is standing right there (does not matter if asleep or in other room)

-no person shall...be compelled in any criminal case to be a witness against himself (5th amend protection against self incrimination) and be deprived from life,...liberty, etc
-due process: 4th amend violations have never been raised to the level of due process violations; evidence gathered during illegal S&S if used during trial has never amounted to due process violation
-in all criminal prosecutions, acused shall enjoy the rt to be confronted with the witnesses against him and have assitance of counsel for his defense
-3 items that rise to the level of needing due process scrutiny- occurs at trial: self incrimination, right to counsel, confrontation of witnesses. the 3 items above had to be looked at by the court outside of the trial itself
-right to counsel and be confronted rights- b/c they have the magnitude of due process scrutiny the court looks at the those rights and violation of those rights to see how the violation will affect the trial. if it will that it is not fundamentally fair, then the court will have to craft a remedy from excluding some evidence all the way to dismissing the case against D. court has this power is b/c due process clause demands it
-eye witness is found to be unreliable: relevant in criminal case b/c jury has to make determination beyond reasonable doubt, scientists all believe it is unreliable leading the court to analyze eyewitness ID to ensure due process is given, we are talking about witness victims here, used in all range of crimes and usually a necessary component
-D wants to focus on unreliability of memory
-Hudson- attenuation doctrine
-if the source of memory at trial is the memory from the crime, the court thinks this is constitutionally reliable (does not violate D's due process)
-IMPORTANT: if the court finds that the testimony in trial/memory stems from a photo array and/or a line up where there was police misconduct, then 2 things: there are methods for getting out of court ID excluded (Foster); b/c the in court ID stems from out of court suggestive procedure, the in court ID has to be excluded as well, within the discretion of the court (if in court ID is excluded, trial falls apart in many cases)

ADD CHART

-Whether courtroom identifications of an accused at trial are to be excluded from evidence b/c the accused was exhibited to the witnesses before trial at a post indictment lineup conducted for identification purposes without notice to and in the absence of the accused’s counsel
-kick out out of court ID b/c no notice to counsel was given, nor present
-state has chance to prove that in court ID were related to crime and observations of victim, rather than the lineup ID
-live line up is a critical stage that counsel should be present
-anything up to line up is not critical, anything from line up to trial is critical, requiring counsel to be present under 6th amend (no 5th amend issue for this)
-totality of circumstances test. Identification procedures are not to be unduly suggestive and conducive to irreparable mistaken identification as to be a denial of due process

-this case had unfair line up procedures
-unduly suggestive and violated due process
-role of counsel at these lineups: can object, able to observe to defend properly at trial

-right against self incrimination
-right to effective counsel
*so counsel and prepare for defense
*so counsel can be aware of occurrences at lineup to effectively cross examine witnesses
*remedy without counsel and have judicial proceedings have begun is ER of evidence- per se exclusion
*the in court ID may be able to be excluded, but based on misconduct at lineup at tampers with witnesses's reliability at trial
-due process rules- where an out of court confrontation between the D and eyewitness is so unnecessarily suggestive so that witness's memory is irreparably harmed OR subject to permanent misidentification, remedy is exclusion of out of court ID
*court is looking _____
*in court ID- possibility for an in court ID to be excluded- can only be excluded for due process violations and not lack of counsel at out of court lineup

-Shard reported that he had been robbed and police stopped and arrested 2 men that had his wallet
-no counsel was present during out of court identification
-did not ask for counsel, nor advised of their right to counsel
-no issue of suggestive line up

1) right against self incrimination
right to effective counsel
so counsel and prepare for defense
so counsel can be aware of occurrences at lineup to effectively cross examine witnesses
remedy without counsel and have judicial proceedings have begun is ER of evidence- per se exclusion
the in court ID may be able to be excluded, but based on misconduct at lineup at tampers with witnesses's reliability at trial
due process rules- where an out of court confrontation between the D and eyewitness is so unnecessarily suggestive so that witness's memory is irreparably harmed OR subject to permanent misidentification, remedy is exclusion of out of court ID
court is looking
in court ID- possibility for an in court ID to be excluded- can only be excluded for due process violations and not lack of counsel at out of court lineup
-victim witness and accuser witness are treated the same in this analysis
-D is entitled to counsel if critical judicial proceegins have begun (indictment, or info has been returned) b/c it is necessary for D counsel to effectively prepare for trial
2) if counsel is present, or not entitled to counsel, engage in due process inquiry under Neil v. Biggers
-photo array is considered to be confrontation?

-look at identifying marks
-misconduct here would be suggestivity conducted by police
-look at misconduct v. reliability
* if there is so much misconduct with out of court ID, argument can be made that the in court ID is to be excluded b/c the misconduct has irreparably harmed the ID

-unnecessarily suggestive (no other 7 ft D in a 100 mi area)- suggests line up should not be done. but if needed, must show police made efforts to try to reduce suggestiveness vs. reliability
-neil v. biggers consideration: applies to show up, photo array, line up. can be added to make a cumulatively unnecessarily suggestive argument

-argue in all cases- exclude evidence
-was out of court ID unnecessarily suggestive? was it so much so as to irreparably hamr the ID of the eyewitness. if both yes, exclude out of court ID for remedy. go backt to crime itself to see if victim has change to create good memory in spite of misconduct. was any part of out of court ID so suggestive that memory can only be linked to misconduct rather than crime, effectively excluding in court ID and ending the case

-deterrence is not the issue, court is looking for misconduct
-misconduct is a good way to draw the line between the 2
-level of suggestivity is going to be compared to the reliability, which goes back to the crime and witnesses' memory from it (did they get a good look, etc)

-takes a totality of circumstances and weighing of factors approach to determine if the in court ID can or cannot be bifurcated from out of court ID that was unnecessarily suggestive

Critical Stage
-substantial rights of accused affected
*upon interrogation or indictment, etc
-photo arrays are put in the category of not similar to trial like confrontation
-suspects are allowed counsel when in a trial like confrontation- such as line up
the when and what of right to counsel - when (critical stage): what (line up, not photo arrays, etc)
-US v. Ash deals with the what

Nature of ID Procedure
Role of Counsel
Remedy

If court finds D is in a critical stage and subjected to live line up, D is entitled to counsel if there is a live line up. if no counsel, then live line up is exclusion. if anything other than live line up, court may take it out of critical stage. if it is not a critical stage and put into a live line up where substantial rights of accused may be affected, does he have a right to counsel? prof thinks it becomes a 5th amend question and not 6th analysis. if not critical stage, then not entitled to counsel under 6th amend

1) problem of misidentification
was it unnecessarily suggestive? (wade?)- court only analyzes this prong if there was police action
A) how suggestive?
i) can rehab eyewitness? (biggers, b/c there is evidence that eyewitness is otherwise reliable- totality test that leads to a balancing test)- is ID at out of court procedure based on witness's own reliability or suggestivity? if reliability, evidence can be admitted. if from suggestivity, then evidence is excluded.
a) other remedies?
-if court finds it is unnecessarily suggestive, too suggestive, eyewitness cannot be rehabbed, the remedy should be to exclude out of court ID and in some cases the in court ID, if it was related to the suggestivtiy rather than original crime itself
--nature of memory (is not developed by court)
2) when memory is added to unnecessarily suggestive, then we have a due process analysis, which is above

-D does not have a right to be present at photo arrays for purposes of allowing a witness to attempt an ID of offender
-having counsel at trial preparation is not necessary to preserve D's right to fair trial b/c at trial they can cross examine