Criminal Procedure: security v. liberty

Transcription

1 Criminal Prcedure: security v. liberty Surces f Criminal Law - Federal Cnstitutin - State Cnstitutins - Statutes/Rules - Law Enfrcement Agencies Rules and - Prcedures Appraches t Due Prcess:Red Bears Are Fake - Rule f Law - Bill f Rights - Accurate Prcedures - Fundamental Fairness Theries f Incrpratin (N Fucks + Shits) - N Incrpratin - Full Incrpratin - Full Incrpratin + - Selective Incrpratin 4TH AMENDMENT Interests? - Privacy - Prperty Searches - Was there a search/seizure? - Was it reasnable? Pre-Katz prperty understanding; n vilatin unless cnstitutinally prtected area Katz Revlutin Privacy Understanding!! - 4th Am. prtects peple nt places - What ne seeks t preserve as private, even in public can be prtected i.e. phne bth - Tw-prng test: Subjective: did they have an actual expectatin f privacy? Objective: sciety prepared t accept as reasnable? (REP) (rareness/cmmnness) - Was the search reasnable? Warrant/exceptin? Is it a search? - Open fields n 4th Amendment if privately wned, if nt curtilage TOTTEN ATTACK OUTLINE - Aerial (Tim s Weed farm) n expectatin f privacy because f prevalence f air travel - Squeezing: i.e. luggage: tactile search = is prtected 4th Amendment - Sniffing Dg sniffs airprt = nt search Traffic stp = nt search; as lng as desn t prlng search Curtilage dn t sniff my curtilage it is a search because intrusin n prperty - Bugged Infrmant nt search b/c vluntarily giving up infrmatin (knwingly expsed) - Trash n Curbs Nt search; yu expse t public Dissent: nly t waste management; Tim = mad!! - Electrnic Tracking Device If yu culd get same infrmatin frm visual surveillance = nt search If yu see details f the hme = search If yu attach GPS t autmbile (trespass) = search vilatin f privacy and prperty - Thermal Imagers Search b/c sensry enhancing, shws intimate details; it s nt in public-use Drnes?? Seizures - Did gvernment cnduct seizure? - Was it reasnable? Seizure f Prperty - Rule: cntrl ver persn s prperty by destrying r remving frm pssessin Must me meaningful interference Seizure f Persn (2 Types) - Stp + frisks (Terry) - Arrests Tests fr all seizures - All circumstances, wuld reasnable persn feel free t decline fficer s request/terminate encunter? Bus OK b/c culd have left situatin Fleeing suspect nt seizure until phys. frce r actual submissin t authrity

2 Warrants - Substantive standard prbable cause - Prcedural need ne! (duh) Arguments - Fr: reliance by citizens; cnsistency by curts; prevents redress 4th Amendment vilatins - Against: hinders law enfrcement Warrant Requirement (POPN) 1) P: Prbable Cause 2) O: Oath Affirmatin 3) P: Particularity - Persn/Place 4) N: Neutral Magistrate Prcedural Requirement: Knck Annunce - 1) WARRANT - 2) Knck - 3) Identify Yurself - 4) State Purpse - 5) request admittance May I cum in? ;) - Wait ) enter by frce Substantive Requirement: Prbable Cause - Sliding scale - Officer s purpse relevant Magistrate decides - Is there prbable cause? Is the evidence trustwrthy? Is it sufficient/enugh? - Annymus Infrmants? Basis f knwledge Veracity and reliability = sliding scale ttality f circumstances - T Whm Des PC extend? PC must be particularized; mere prpinquity nt enugh (bartender case) Exceptin: Autmbiles PC extends t passengers because they share an enterprise Exceptin t Prcedural Requirements = n warrant; PC ALWAYS needed - Exceptin: Exigent Circumstances Need PC; dn t need warrant Delay wuld; endanger lives f fficers/thers cause destructin f evidence Ht pursuit (BFD crime) Search ccurs fr smething ther than law enfrcement Helping victims; cmmunity caretaking etc. After a hmicide? nt exigent circumstance b/c yu can g get warrant Plice create exigent circumstance? as lng as nt n purpse, still applies - Exceptin: Plain View Need PC; dn t need Warrant (1) lawful vantage pint (2) right f physical access (3) crim. nature is immediately apparent Example Mve papers t VIN and see cntraband = OK DON T mve stere - Exceptin: Autmbiles Need PC; dn t need warrant Must be fr particular article f cntraband Smewhat related in time Applies t mtr hmes Cntainers in Cars Whle car if nt particularized inf, but nt areas where nt pssible cncealed (i.e. n TV in glve bx) Acevad Can passengers belngings *?? Outside car = need warrant; in car dn t need warrant? wtf? - Exceptin: Cnsent Searches NO PC; NO warrant N reasnable suspicin needed! CANNOT be cerced Vluntariness determined by ttality f the circumstances Plice d nt have t tell yu that yu have the right t refuse 3rd Parties Plice have reasn t believe persn has cmmn authrity Disagreeing Parties ne party disagrees = n cnsent Scpe f Cnsent

3 What is reasnable? unless the persn limits the scpe *All arrests are seizures nt all seizures are arrest Arrest custdy by lawful authrity, in rder t answer t criminal charge - ALWAYS need PC - Exceptin: Arrests PC; n warrant (smetimes) When are yu seized? Freedm restrained/dn t feel free t terminate encunter Public Place Need PC dn t need warrant Severity desn t matter In Hme Warrant; unless exceptins apply (same as warrantless search) 3rd Party Hmes Need warrant + search warrant fr 3rd Party s huse Why? prtect rights f 3rd party Mtive/Manner Desn t matter as lng as PC Knck and Annunce Applies Deadly Frce PC t believe that suspect is significant threat Reasnable believe frce necessary - Exceptin: SILA N PC; NO warrant R: plice can search an arrestee r the grab-able area t remve any weapns Ratinales Officer Safety Destructin f Evidence Hme Clsets/clsed spaces adjining area can search w/ut RS Nt immediately adjining need RS if yu wrry f attack Dn t lk in drawers! Persn arrested w/pc = SILA always Auts SILA car nly if 1) reach grab-able area f passenger cmpartment TOTTEN ATTACK OUTLINE 2) RS assume vehicle cntains evidence f arrest - Exceptins: Terry Stp N Sub; N Warrant Open up discretin racial prfiling Rule: limited search f uter clthing with RS based n specific facts that armed/dangerus Stp (seizure) Standard: RS Reasn: investigate crim. activity Scpe: limited time/cnfirm dispel suspicin Frisk (search) Standard: RS Reasn: fficer safety (NOT destructin f evidence) Scpe: limited pat dwn Plain tuch search fr safety and feel cntraband = can seize NO extra squeezing High crime + flight = RS Nervus/evasive behavir cntribute t RS Aut can rder t exit car w/ut RS Passenger cmpartment: search where weapn may be hidden if RS that dangerus + culd grab weapn - Exceptin: Special Needs Public safety Balancing test: public interest v. liberty Radblcks Brders OK Highway sbriety OK b/c checked ALL cars Nexus between nature f stp and nnlaw enfrcement gals Remedies t 4th Amendment Vilatins: Exclusinary Rule - R: evidence seized in vilatin f the 4th Amendment is excluded frm use during trial - Purpse: deter unlawful plice cnduct; shuldn t gain frm breaking law - Mtin in Limine t suppress - Gd Faith Exceptin: if reasnable fficer believed warrant was valid; then later declared invalid = can still be intrduced

4 Nt reasnable: knwingly give false inf; rubber stamp; n basis fr PC; nt particularized Why have it: n deterrence if think valid BOP n Prsecutr Expansin: applies t ther emplyees/negligence f fficer; bindig precedent later verturned des nt extend t fficer mistake - Can use fr impeachment - Standing: can nly seek t suppress if search seizure vilated wn REP, nt smene else s Fruit f the Pisnus Tree Always ask WHO (standing); and WHAT (evidence) - Exclude evidence btained as result f illegal search - Ratinale: deterrence - Extends t bth phys. evidence & verbal statements - Evidence can be admitted if it is distant enugh frm the unlawful actin t n lnger be cnsidered FPT But-Fr Causatin: Did the illegal search cause the receipt f evidence? Independent Surce Inevitable Surce Other Remedies: civil suits against the plice fr trespass; crim. suits; admin. penalties; reducing penalty 5TH AMENDMENT Elements: - Cmpulsin - Incriminatin - Testimny - (Natural Persn) Purpse? - Privacy - Nn-Incriminatin Majrity view: nn-incriminatin Invcatin - Witness! - Judge determines if incriminate - Witness t either t invke r nt Enugh t frm link-in chain desn t have t directly incriminate Immunity Statutes - Use/Derivative Use: Gvernment can still prsecute yu, just can t use yur statements r any evidence btained frm statement - Transactinal: immunity frm prsecutin fr ffense (can t use testimny/ther evidence amnesty) - Purpse: prtect frm self-incriminatin Element 1: Cmpulsin - Spectrum - Case by case basis Element 2: Incriminatin - What is criminal? When yu can invke?: criminal trials; grand jury; plice encunter etc. T determine if criminal: Legislative intent Hw punitive is it? - Hw serius must it be? Unclear Danger must be real and appreciable Element 3: Testimny - Privilege is limited t testimnial/cmmunicative evidence - Revealing cntents f ne s mind - Nt physical/real evidence Cruel Trilemma - Tell the truth and face incriminatin - Lie and risk perjury - Stay silent and face cntempt Cmpulsin & Plice Interrgatin - *mst likely t run int cmpulsin element - Pre-Miranda vluntariness standard - Miranda In situatins f custdial interrgatin plice must ntify suspect f 5th Amendment Rights Triggered by Custdial Interrgatin Custdial: Frmal custdy r therwise deprived f his freedm f actin in significant way Inherently cercive/cmpelling situatins Wuld a reasnable persn feel deprived f freedm? Interrgatin Express questining r functinal equivalent Plys = kay (says Tim)

5 Cercin judged frm suspect s perspective Reasnably likely t elicit an incriminating respnse Warning 1) right t remain silent 2) anything yu say can/will be used against yu 3) right t attrney 4) can t affrd, ne will be appinted D yu understand? TOTTEN ATTACK OUTLINE Talking abut custdy (ask fr water, bathrm etc.) = n re-initiatin Talk abut interrgatin = plice can interrgate again - Miranda required by cnstitutin Public Safety Exceptin - N disclsures when may prevent frm prtecting selves/public Cnsequences f Miranda vilatin - Exclusinary Rule (nt exactly as 4th) Can still use fr impeachment - FPT Un-mirandized, invluntary = excluded All fruits f the same = excluded Un-mirandized, vluntary = excluded Fruit f the same = NOT excluded 6TH AMENDMENT Legal Assessments after Miranda Warnings - Invcatin Can claim the 5th at any time (right t remain silent) Unclear = n invcatin Must be Express, nt Implied Must unambiguusly request cunse Once invcatin is established plice MUST cease interrgatin - Waiver Express Implied CHECK THIS FRIENDS?? Elements f Waiver: Vluntarily Knwingly and intelligently - N invcatin + waiver Questining allwed, statements admissible - N invcatin, n waiver Questining allwed, statements inadmissible - Invcatin + later waiver Withut Re-initiatin f suspect: Right t remain silent: can keep asking fr waiver; admissibility depends n whether right was scrupulusly hnred Right t Cunsel: plice can t cntinue until cunsel is present Re-initiatin by suspect: - Giden v. Wainwright 6th Amendment applies t the states, fr all felny cases Needed fr fair trial Negatives Strain n curts Increased incentive t encurage plea bargaining Applicatin Entitled t cunsel if face jail time (even if nly ne day) N indigent be sentenced t jail withut cunsel (actual n ptential) When des the right t cunsel begin? (1) Attachment (2) Critical Stage (3) (Harm Prtected by 6th) - Attachment Attaches at initial appearance/equivalent judicial prceeding initiated Occurs when relatinship becme adversarial - Critical Stage After right attaches Nt entitled t cunsel present unless it s a critical stage Critical stage: Pretrial prcedures that wuld impede a defense n the merits

6 if the accused is required t prceed withut cunsel Any stage f the prsecutin, frmal r infrmal, where cunsel s absence might dergate frm the accused right t a fair trial Any infrmal meeting between Δ and representative f the State that is designed r likely t elicit incriminating infrmatin Ex. preliminary hearing; interrgatin after initial appearance; arraignments - Timing: cunsel must be appinted within a reasnable time after attachments t allw fr adequate representatin at any critical stage and trial Plice Line-Ups/Eyewitness Identificatin - Pre-trial eyewitness identificatins = critical stage Δ have right t cunsel (if right has attached) - Evidence f pre-trial identificatin in vilatin f 6th = inadmissible - In-Curt identificatin fllwing a pre-trial identificatin btained in vilatin f the right cunsel as always inadmissible Unless: (1) gv. carries burden (2) by clear and cnvincing evidence (3) there is an independent basis fr the in-curt identificatin (ex. lng term friend) - Pst-indictment line-ups ALWAYS require cunsel - There is NOT a per se rule against preindictment lineups When Des the Right t Cunsel End - 6th Amendment right applies t all critical stages thrugh sentencing by the trial-judge, but nt appeals - Desn t apply t direct appeals/cllateral review Other bases n appeal: statutry r EPC Interrgatin Limits under the 6th Amendment - Cnstitutin is vilated when gvernment agents, absent defense cunsel, deliberately elicit incriminating infrmatin frm a persn whm adversary judicial prceedings have cmmenced (Massiah) Ex. Christian burial speech (subjective)