Remedy for a 4th Amendment violation: Exclusionary rule

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  1. Remedy for a 4th Amendment violation: Exclusionary rule


    1. Mapp v. Ohio (1961) establishes exclusionary rule.

      1. Rationales for exclusion:

        1. Deterrence – excluding the evidence is the only thing that will make police change their behavior. Civil remedies never win.

        2. Judicial Integrity – Can’t allow the judicial process to be tainted with evidence obtained illegally, so exclude the evidence

        3. Compensating the victim – victim of a wrong deserves a remedy

          1. This was not stated in Mapp and is only operative re: standing, where it serves to include, not exclude evidence.

      2. Fruits Doctrine: fruits of a bad search are excluded

    2. Standing: D challenging evidence must have standing to do so.

      1. Only a person whose rights have been violated can challenge the violation.

      2. Relies on compensatory rationale: only the person wronged has a remedy.

      3. Under deterrence or judicial integrity rationale, makes no sense to allow fruits of bad police behavior to be allowed just because the police violated someone else’s rights.

      4. Rakas v. Illinois – D has standing where D was subject to a search. If you weren’t searched, then no standing to challenge the evidence found.

        1. Simmons – D can claim ownership of something only for the purposes of establishing standing.

      5. Rawlings v. Kentucky – For a police act to be a search, D must have had a reasonable expectation of privacy that was violated. If you hand something over to a third party, you’re gonna lose standing to challenge it.
      6. Minnesota v. Carter – Case by case analysis for reasonable expectation of privacy. None in 3rd party’s home where purpose of being there was commercial and weren’t there for long.


        1. Court is not clear on whether the commercial nature of the interaction or the duration of the interaction is doing the work.

    3. Fruits doctrine: Violation doesn’t have to lead to exclusion

      1. Inevitable Discovery – it the police would have discovered the evidence anyway, then it’s not a fruit of the bad police action.

        1. US v. Walker – After illegal arrest and interrogation, police see blood on D’s shoe as they’re releasing him. If they had followed good procedure and just approached him to talk, they would still have seen the blood. Therefore, it’s admissible.

      2. Independent Source – if the police find an independent source that would have led them to the same evidence, then it’s not a fruit of the bad police action.

      3. Attenuated Causal Chain – Evidence obtained after an illegal arrest / search is admissible when the causal chain between the illegal act and the receipt of evidence is broken or attenuated.

        1. Wong Sun v. US – Police illegally arrested D but let him go. 2 days later he comes back and confesses. Though there is some causation here, his return to make the statement was ruled independent of the illegal arrest. Therefore, it’s admissible.

        2. This is a policy question, like proximate cause. Of course there was a causal link in Wong Sun, but court says it’s too attenuated. If exclusion won’t deter bad police conduct, then won’t exclude.

          1. Intervening act of a non-police party will generally dissolve the taint.

      4. Good Faith Exception – where police rely in good faith on a magistrate’s decision that a warrant was good, fact that warrant is later held to have been bad doesn’t trigger exclusionary rule.
        1. US v. Leon – Drugs found on improperly issued warrant admissible b/c serves no deterrent rationale to exclude evidence where cops were doing exactly what we’d want them to do.


        2. Cops must reasonably believe that the warrant was good. If cops should have known it was bad, then no good faith exception.

  2. What constitutes a search under the 4th Amendment

    1. Originally, search hinged on whether there was physical trespass (Olmstead 1928)

      1. Wiretapping criminalized in 1934, so police looked to other ways to hear:

        1. Goldman (1942) – Slap mic on outside okay b/c no trespass

        2. (1961) – Spike mic no good b/c penetrated wall

    2. Katz v. US (1967) – 4th Amendment applies where police violate a person’s reasonable expectation of privacy.

      1. Information knowingly exposed to the public gets no protection.

      2. In this case, speaking inside a closed phone booth is protected – evidence from mic on outside of phone booth is excluded. There’s a reasonable expectation of privacy in a closed phone booth.

      3. Subjective expectation of privacy drops out. Test comes down to what expectations society will recognize as reasonable.

        1. Ex: talking in code b/c you think someone is listening won’t defeat expectation of privacy. Failure to talk in code b/c you’re confident nobody is listening won’t create expectation of privacy.

    3. What affects whether you have a reasonable expectation of privacy

      1. Risk – if there’s a risk someone will overhear/see evidence, no REP
        1. Oliver v. US – no REP in open fields. People trespass all the time when there are no fences. Therefore not a search for police to go in


        2. FL v. Riley – no REP in your backyard. Anyone with an overhead view can see in. No matter that police happened to use a plane/helicopter to do it. It’s not a search.

      2. Voluntary/Knowing handing over of information to third party – if you give information over to a third party, you have no REP in it.

        1. Smith v. MD – Pen register – you turn over the numbers you dial to the phone company, so you have no REP in them. Where others see “envelope information,” no REP in that info.

        2. CA v. Greenwood – no REP in your garbage. By putting it somewhere where anyone could access it, you give up any REP.

          1. In Katz, no normal person could access the conversation.

      3. Need for Technology to get the evidence – if cops need it, this weighs in favor of it being a search, esp. if the technology isn’t generally available.

        1. Note: it’s about the need for technology, not the use of it. Plane in Riley was technology, but wasn’t necessary to see in. In same vein, police could likely use technology to scan trash w/o it being a search, where same technology used on a house would be a search – all b/c police could have gotten to the trash anyway. Hinges on whether you have a REP in protection from getting the evidence.

        2. Kyllo v. US – police use of thermal imager to scan house is search

        3. US v. Mankani – police use of simple technology like binoculars or flashlight not a search. Enhancing senses generally not a search.

      4. Illegal actions – if what police do is illegal for public, weighs in favor of search. Riley court mentions that if plane was too low, would be a factor.

      5. Intimacy / Degree of intrusion
        1. US v. Place – Dog sniff of baggage not a search. Doesn’t expose anything about your bag, so violates no REP.


        2. US v. Knott – placing tracker on package of chemicals used to make drugs prior to purchase not a search. No intrusion.

        3. Smith – Pen register didn’t capture any private info in the call

        4. Riley – plane didn’t interfere with use of backyard

      6. Interference with possessory interest

        1. Chadwick – REP in your luggage, so opening it is a search.

        2. US v. Bond – REP in your luggage, so squeezing it and feeling for certain objects is a search.

      7. No REP in a prison cellHudson v. Palmer.

  3. Warrant Requirement: if what police do is a search, they need a warrant

    1. Warrant must be based on probable cause (see below)

    2. Warrant must be issued by neutral magistrate (Coolidge) or supervised clerk (Shadwick). Non Delegation

      1. Rooker – Judge must actually read the application for warrant. Can’t just rubber stamp it.

      2. Connally – Judge can’t receive money for issuing warrants b/c then he’s not detached.

      3. Davis – Government may not apply to a different magistrate with the same evidence when denied by the first.

    3. Warrant must be particularized for what and where police are looking

      1. Steele - Enough if cops can ID the place upon seeing it

      2. Go-Bart – Need description of what cops are looking for to prevent generalized searches

    4. Warrant must be executed reasonably

      1. Generally within 10 days

      2. During the day

      3. Cops must knock, announce, wait before they can break down door
      4. Ybarra – can’t just search anyone on the premises (limited to stop and frisk under Terry)


      5. Cops can only search where the named items might be

      6. Cops must stop if they find all that they were looking for

      7. Search must ultimately be reasonable. Winston – can’t order surgery

    5. Warrant must be authorized before the search

  4. Probable Cause for a Warrant

    1. What probable cause means

      1. Arrest Warrant: Substantial probability crime was committed by suspect

      2. Search Warrant: Substantial probability that items (i.e. evidence) are in certain place

    2. What counts as a “substantial probability

      1. MD v. Pringle – drugs found in car with 3 passengers. OK to arrest all 3. Substantial probability doesn’t mean +50%

      2. State v. Thomas – OK for cops to arrest 2 people for same crime. There can be PC even where cops admit it’s equally likely that two people did it

      3. Cops can arrest guy based on description over radio, even though clearly can’t satisfy more likely than not standard.

    3. How to get probable cause: #1 – An informant’s tip

      1. Overview

        1. Non-delegation – Decision must be made by magistrate.

        2. Basis of Knowledge – Police have to show magistrate how the informant knew what he claims. What creates BoK (Spinelli):

          1. Informant gave particularized information regarding criminal activity, not just facts pointing to criminality (Draper)

          2. Informant says he saw criminality first hand
        3. Reliability – Police have to show magistrate why the officers think the tip is reliable. What creates reliability (Spinelli):


          1. Corroboration of non-trivial (though not necessarily criminal) facts or details in informant’s story

          2. Informant has given good tips in the past

          3. Personal report to police (instead of anonymous tip)

          4. Might worry about using police for vendetta

      2. Spinelli v. US (1969) – For a tip to create probable cause, it must give police the informant’s basis of knowledge and police must have reasons for thinking the tip is reliable. All this information must be presented to and evaluated by a magistrate (non-delegation).

        1. Info in this particular case was likely enough, but affidavit for magistrate didn’t have all of it. SS: this was decided on delegation.

        2. Under Spinelli, need proof on both prongs of the test.

        3. Mandating both basis of knowledge and reliability protects against lying informants – even if they lie about the basis, lack of corroboration will make for no reliability.

      3. IL v. Gates (1983) – Evaluate Spinelli prongs under totality of the circumstances. Deficiency in one prong can be addressed by strength in the other

        1. Result is deference to magistrate’s decision

        2. Allows magistrates to be free to make better decisions – state courts had been interpreting Spinelli too rigidly.

        3. Doesn’t really create different results than Spinelli test.

        4. Worry that slushiness may mean test no longer protects against lying informants.

      4. McCray v. IL – Cops don’t have to reveal informant’s identity or allow cross examination (though anonymity affects reliability of the tip)

      5. MA v. Upton – example of state court applying Spinelli too strictly
        1. State court had struck search under Spinelli, SC upholds under Gates. However, should have satisfied Spinelli.


        2. BoK – Yes – informant said she’d seen the stolen items

        3. Reliability – Yes – she was his ex-girlfriend, could describe his home, had details about the crime

      6. BoJus Hypo: caller says 2 battered kids living with bad-tempered unrelated person next door

        1. BoK – don’t know how caller knew of the abuse

        2. Reliability – no corroboration of any details, no knowledge of caller’s motive

        3. Thus, fails both Spinelli and Gates. Plus, if police just went and acted on the tip, you have delegation problem

      7. However, magistrates will bend over backwards to find PC where there’s a serious crime at issue, even though standard should be the same.

    4. How to get probable cause: #2 – information from the victim / a witness

      1. Paszek – Don’t have to show reliability to magistrate b/c victims and witnesses usually intend to aid cops

      2. Brown v. US – Issue is whether the description given is sufficiently particularized to implicate the person arrested. Radio description case said that what they had (not that much) was good enough.

    5. How to get probable cause: #3 – Observations by cops

      1. Brooks v. US – Whether the observations generate PC of criminality is measured by standard of a reasonable & prudent cop, not casual passerby.

  5. Warrantless Arrests

    1. Overview:

      1. If cops have PC but no warrant, can arrest in public for…

        1. Felony (Watson)

        2. Misdemeanor committed in police presence
      2. Open question if cops can arrest in public for other misdemeanors


      3. Otherwise, need exigent circumstances

    2. US v. Watson – Warrantless arrest in public for felony ok.

      1. Court goes into history, but we’re not responsible for that.

      2. Rationale (SS): practical difficulties in making felony arrest lead to policy decision not to require warrants. Would force police to prove exigency each time they couldn’t get one. Plus, when they do get one, it can go stale. Finally, if we required warrants, magistrates would get overloaded and become a rubber stamp.

    3. Exigent circumstances

      1. Warden v. Hayden – Exigency includes preventing danger to cops/others.

      2. MN v. Olson – Exigency includes (1) preventing suspect’s escape, (2) destruction of evidence, (3) mitigating danger to cops or others. However, Olson also requires use of the least intrusive alternative when the police assert exigent circumstances for warrantless arrests in a house.

      3. Welsh v. WI – Courts will be hesitant to find exigency where crime at issue is low-priority, here DUI w/ only punishment of forfeiting license

    4. Public Places (i.e. where you have no REP under Katz)

      1. Payton v. NY – Suspect’s home is not a public place. Need arrest warrant or exigent circumstances to go in. However, if police have arrest warrant, don’t need separate one for house. Probable that suspect is at his house.

        1. For other private locations, police need warrant for that place.
      2. Steagald v. US3rd party’s home is not a public place. Here cops busted into S’s house looking for L, L not there, but see drugs. Can’t use drugs against S.


      3. US v. Reginfo – Hotel room is not public, hallway outside is. Ok for police to trick suspects into coming into hallway.

      4. Closed bathroom stall not a public place – REP there.

    5. Magistrate Review of Warrantless Arrests

      1. Gerstein v. Pugh – magistrate must promptly determine PC to keep him.

      2. County of Riverside – Prompt = w/in 48 hours of arrest. However, even within the 48, can’t unreasonably delay. After 48 hours, burden shifts to government to show a bona fide emergency or extraordinary circumstance.

        1. Whoa – There’s an entire 48 hours during which government can lock you up with no review by magistrate.

    6. Use of Force in Arrests

      1. TN v. Garner – Deadly force is not allowed to apprehend a fleeing suspect. Only ok to stop suspect’s escape w/ PC and believe he poses an immediate threat to cops / others.

      2. Graham v. Connor – What is ‘reasonable’ force, depends on the facts of each case from the perspective of a reasonable cop acting quickly.

  6. Warrantless Searches

    1. Overview

      1. Searches Incident to Arrest (SIA) are allowed w/o PC

        1. Full search of the person (Robinson)

        2. Full search the grabbing area for weapon or destroyable evidence of the crime (Chimel)

        3. Limited protective sweep of immediately adjacent areas (Buie)

        4. Limited protective sweep beyond immediately adjacent areas with founded suspicion and no LIA (Buie) (Block)

      2. If police have PC and there are exigent circumstances, can search
      3. Cars present a different case. Different search powers if you have PC.


    2. Search Incident to Arrest (SIA)

      1. Chimel v. CA – Cops can search suspect and grabbing area for weapons and destroyable evidence incident to arrest in a home.

        1. Search of grabbing area is limited to weapons or destroyable evidence of the crime at issue

        2. Robinson later says search of the person is unlimited

        3. Rationale: officer safety, preventing evidence destruction. Search is justified as part of the arrest transaction

        4. Chimel philosophy is one of fine-tuning, looking at LIA. Under this idea, if police don’t use a search power when they have it, they can’t go back and get it later.

        5. Rejects “perverse incentives,” “administrative convenience,” “forwarding investigation” arguments (see below)

        6. Appears to have temporal limit – once you leave, you lose it

      2. Perry (IL Case) – allowed search of D’s hotel room after he was cuffed and taken out. Rationale: Chimel’s fine tuning isn’t worth it, and per se rule of “if it was ever grabbable, you can search it” is easier to administer, better incentives for police. Bad law under Chimel and Buie.

      3. Rationales for allowing more searching than Chimel court did:

        1. Perverse incentives: Don’t want police not cuffing a guy so that the room stays grabbable

        2. Administrative convenience: easier to allow full SIA than wait for a warrant

        3. Forwarding investigation: cops might not be able to get warrant and they’re already legitimately there, so should be able to search

        4. Inevitability: cops are going to do these searches no matter what, so all you do by excluding evidence is let guilty people go
      4. MD v. Buie – Cops can search immediately adjacent area (IAA) in protective sweep. Search is very limited – only to see there are no people


        1. Rationale: officer safety only. Doesn’t apply when police are already outside. Only to protect officers making legit arrest

        2. Has LIA analysis built in

      5. People v. Block (CA case) – Cops may search beyond IAA if they reasonably believe dangerous individuals are there and there is no less intrusive alternative. Cops may also continue searching if they have founded suspicion other crime participants are there.

      6. Plain view rule: anything police see from a place they are allowed to be is admissible

    3. Scope of a Warrantless Search

      1. AZ v. HicksIn a house, cops can only search what is in plain view. Here, cops went into house after hearing gunshots. Were NOT allowed to lift corner of stereo to see serial number to check if it was stolen. Serial number was not in plain view.

      2. US v. Robinson – Full search of person in course of arrest is ok

        1. Rationale: rejects Chimel fine tuning of grabbing area logic. Bright line rule gives police flexibility. They’re gonna search person fully anyway, so nothing gained though exclusion.

        2. Taking Robinson at face value, doesn’t affect Chimel analysis of grabbing area beyond the person

      3. IL v. Lafayette – full inventory search of property after arrest ok. Irrelevant that there’s a LIA. Rationale: protect against suits that police stole, keep contraband out of police station.

      4. Chadwick – can’t search luggage w/o warrant (but at station?)

    4. Exigent Circumstances (with PC) – Must use LIA

      1. Dorman v. US (DC Cir.) – search w/o warrant in house exigency factors:

        1. That a grave offense / violent crime is involved
        2. That the suspect is reasonably believed to be armed


        3. That there exists more than the minimum of probable cause required for a warrant, but beyond that a clear showing of probable cause to believe that the suspect committed the crime involved

        4. Strong reason to believe that the suspect is in the premises

        5. Likelihood that the suspect will escape if not apprehended quickly

        6. Fact that the entry, though not consented, is made peaceably

        7. Time of entry: if it is night there might be more delay to get warrant and hence more justification for proceeding. However, more probable cause might be required to go ahead.

      2. MN v. Olson – mandated LIA in executing exigent circumstances warrantless arrest and search in a house.

      3. Vale v. LA – (1) There is no exigency if a warrant could have been obtained earlier but police didn’t. Police waiting can’t create exigent circumstances. (2) Securing premises is less intrusive than going in.

        1. Arrest was outside house. SIA power doesn’t extend into house.

        2. Fact that D’s buddies were outside and might destroy evidence if police left isn’t exigent circumstance.

          1. Police could have gotten warrant for house at outset – they knew where they were going. Not going to let police use D’s friends in the area to get into house. Potential for abuse

          2. Securing house and waiting for warrant is less intrusive way for police to still get everything they want

      4. US v. Grummel – D arrested at house. Ok to tell mom inside to come outside or to stay w/ cop while cops got a warrant, to stop her from destroying anything. This was LIA.

      5. Segura v. US – Cops may secure a home either w/ perimeter stakeout or may enter pending a warrant to search. A reasonable seizure / securing property can be unreasonable if done for too long.
      6. Illinois v. McArthur → Ok to secure property (make people wait outside) w/ PC to believe home has evidence and D would destroy it if given the opportunity. Property may only be secured a reasonable period of time. Reasonable efforts to reconcile personal privacy with law enforcement needs are sufficient


      7. Mincey v. AZ – seriousness of the crime doesn’t create exigency

      8. However, cops are allowed to stay at scene of murder w/o warrant for a while to investigate

    5. Cars – without PC (SIA)

      1. NY v. Belton – w/ arrest, cops can search entire passenger compartment. Court generalized entire passenger compartment as grabbable.

        1. No matter that D was pulled over and arrested for speeding and search had nothing to do w/ getting evidence for speeding

        2. Even inside of containers is grabbable

        3. Hypo – could even search file folders after speeding arrest

        4. Court uses broad generalization as bright line – no case-by-case

      2. Thornton v. US – can still get search of passenger compartment as grabbing area even if D out of car when police approach

        1. Unclear if rationale is that car is grabbable for someone nearby (searchable on police safety rationale), or that D was a recent occupant so police shouldn’t be penalized for waiting for D to get out (police incentives rationale)

        2. Here, cops had PC before D got out, so decision could be that if cops could have approached him while he was in the car, they don’t lose anything/he can’t avoid a search by getting out.

        3. Could also be an expansion of Belton. Belton already said car is still grabbable after D is cuffed and outside of car, so it’s no less grabbable if D is next to car when he’s cuffed.

        4. As written, Thornton restricted to recent occupants.

        5. Scalia rejects grabbability generalization and says you simply have a lower expectation of privacy in car.
      3. Knowles – Police can’t do full search of car if cop only gives a citation (not arresting). Being able to take D out of car and, upon suspicion of dangerousness, frisk D (Terry) and pat down car interior (MI v. Long) is enough to protect police. No evidence-finding rationale w/ citation.


      4. PA v. Mimms, MD v. Wilson – Cops can always pull D (Mimms) and passengers (Wilson) out of a car in a stop, even if not arresting. It’s minimal additional intrusion, given the stop

      5. Hypo 1: guy drinking outside his car, has outstanding tickets, police arrest

        1. Whether they can search depends on Thornton rationale – recent occupant (no) or grabbability (yes)

      6. Hypo 2: tailgate party at V’s car, D hits V. Cops arrest D, ask whose car, V says it’s his. Cops search, find drugs

        1. Grabbability rationale would make this admissible regardless, even if D has never been in V’s car.

        2. Limiting Thornton to recent occupants makes this inadmissible.

    6. Cars – with PC: the Car Exception

      1. Overview: doesn’t seem to hinge on lower expectation of privacy, or issue of mobility. Bottom line is different rule for cars.

      2. CA v. Acevedo (1991) – w/ PC for a car, police can search whole car w/o warrant, including any packages, locked areas (Ross).

        1. W/ PC only for a package that’s in the car, police can only search for the package and must stop when they find it. But can open it.

        2. Only need PC (no warrant) to search luggage/package in car

        3. Does not extend Chadwick’s REP re: luggage to car context

      3. CA v. Carney (1996) – Mobile home is “car” so can be searched w/ PC but no warrant

        1. Rationales (Carroll): lower expectation of privacy, highly regulated, in plain view, easily mobile, Belton already generalizes for cars

        2. Here, search was hours after the arrest – not SIA


        3. Gives access to locked areas – more expansive than Belton

      4. FL v. White – Warrantless seizure of cars ok under Carney w/ PC to believe the car itself is contraband.

      5. US v. Di Re – PC to search car does not justify a body search of passengers, even if passengers could be concealing evidence

      6. Houghton – PC to search car allows cops to search articles regardless of who in the car own them

      7. Inventory searches of cars

        1. CO v. Bertine – cops impound car after drunk driving stop. Court says admin search of impounded cars ok. They had a policy of doing these searches, and no evidence that cops did search here for law enforcement purposes.

        2. Special need: guard against claims of unauthorized interference with car (theft, vandalism, etc), protect police

        3. Ok even if police don’t search all cars. As long as discretion isn’t exercised for purpose of criminal law enforcement.

    7. Pretext Arrests to get a search

      1. Gustafson v. FL – D didn’t have license while driving. Cops chose to arrest, found drugs in SIA. This ok. No matter that crime was trivial and cops didn’t have to arrest for it.

      2. Atwater v. Lago Vista – D arrested for fine-only offense. This is still ok. Police have to have discretion. May doubt D’s address/ID, need to breathalyze, D may be repeat offender (penalty not always clear).

        1. This was civil suit. 4th Am applied in the moment, and we don’t want to incentivize cops to not arrest.

        2. Case-by-case analysis of every traffic arrest would be burdensome
      3. Cops can’t arrest when state law prohibits arrest, but remedy for violating state law may not be suppression. Mota (9th) said it was, but SC may not.


      4. Whren v. US – police motive in decision to stop is irrelevant so long as it’s not racial

        1. Here, there was PC to arrest for speeding, traffic infraction. No matter that these were drug cops and DC policy was that drug cops don’t make traffic stops. Makes us think Mota would not be good.

        2. When police stopped the car, saw drugs in plain sight

    8. Review: Cops have tons of search power.

      1. Whren: in judging reasonableness of arrest, courts can ignore cops’ motive

      2. Atwater: Cop can arrest no matter what the sanction of a crime.

      3. Belton/Thornton: Cop can search occupant or recent occupant of a car based on SIA

      4. Lafayette: W/ arrest, cops can search personal affects on inventory

      5. Riverside: W/ arrest, cops don’t have to charge for 48 hours

    9. Hypos – see full outline, page 21.

      1. Open questions from the hypos:

        1. Whether SC would extend Belton generalization of grabbability to entire bus, implicating privacy of people w/ no connection to D.

        2. Whether, after arresting car’s driver, police may search bag of passenger who got out and took bag with her under Belton & Thornton rationale of police don’t lose search power by waiting.

          1. Body search of this passenger hinges on Terry




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