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Overview
Rights Guaranteed by the 14th Amendment

(all relevant Amendments)
Rights Incorporated to States by 14th Amendment:

4th Amendment:
Unreasonable searches and seizures of persons and property.

5th Amendment:
self-incrimination;
double jeopardy.

6th Amendment:
Speedy, public, fair trials;
right to confront witnesses;
assistance of competent counsel

8th Amendment:
Cruel and unuusal punishment.
Overview
Results of Procedural Errors
Bar on prosecution;
exclusion of illegally seized evidence in case-in-chief (not for impeachment);
automatic reversal (for prejudicial error);
nothing for harmless error.

Test for harmless error:
Appelate court must be convinced beyond a reasonable doubt that improperly admitted evidence did not contribute to guilty verdict.

State has burden of proving harmless error beyond reasonable doubt for coerced confessions.
4th Amendment Protections
4th Amendment Protections
&
Search of the Person
Citizens' and resident aliens' "reasonable expectation of privacy" in their person and possessions protected by 4th Amendement;
applied to states by 14th Amendment.

Search = any governmental intrusion of a reasonable, justifiable expectation of privacy.

Reasonable expectation of privacy must be both objectively and subjectively reasonable (Katz).

Note: if police have reasonable suspicion, suspect can be asked for ID w/out implicating 4th Amendment precautions.
4th Amendment Protections
Standing to Raise 4th Amendment
Can't assert another's rights;
must have a "reasonable or legitimate expectation of privacy."

Standing for items seized or place searched requires:
Right to exclude others;
ctoninuing access to premises and a property interest;
legitimate presence on premises and possession interest in items seized;
or a valid bailment of item.

Co-conspirators don't automatically have standing to assert other conspirator's rights.

Overnight guests have standing, but visitors for a commercial transaction do not.
4th Amendment Protections
Electronic Surveillance
Permitted with consent of one of the parties (false friends can consent).

Warrants, based upon probably cause, required if an expectation of privacy and no consent.

Probably cause = likelihood of evidence being discovered, other procedures failed, wired facilities are connected to a crime.

Warrant must describe person, conversation, and be limited to time.

Surveillance must stop after conversations recorded.

Not applicable to pen registers and bank accounts.
4th Amendment Protections
Aerial Surveillance,
Curtillage,
Open Fields,
Trash
Aerial Surveillance:
Not a search if from public navigable airspace and not physically intrusive.
THERMAL IMAGING = unconstitituional (Kylo, 01)

Curtillage:
4th Amendment applies.
Factors:
Proximity of area to home,
area enclosed or fenced,
nature of use,
steps taken to protect area from observation

Open Fields:
no reasonable expectation of privacy (4th Amendment applicable)

Trash: no reasonable expectation of privacy if left at curb.
4th Amendment Protections
Seizure of Person
Seizure of Property
Seizure of Person:
When person submits to show of authority or when reasonable person would not feel free to walk away from police.
Arrest=seizure of person.
Note: not all police questioning is a seizure of person.
A passenger is considered seized and can raise the 4th Amendment. (Brendlin)

Seizure of Property:
Government's physical control over a thing.
Warrants required, unless exception can be found.
Not applicable to electronic tracking devices or de minimus drug field tests.
4th Amendment Protections
Probable Cause
Probable cause = reasonable cause, requires trustworthy evidence that would make reasonable person think it more likely than not that proposed arrest or search is justified.

Needed for searches, seizures, and warrants.

Judged by "totality of circumstances" (Ill. v. Gates)

Can be based on police observation, informants, eyewitnesses, and anonymous tips (if corroborated).

Officer's subjective motivation not a factor.
4th Amendment Protections
Probable Cause
Probable Cause to Arrest
Probable Cause to Search
Probable cause to Arrest:
Requires substantial trustworthy evidence that
(1) violation of the law has been committed and,
(2) person to be arrested committed the violation.
Can arrest all persons in the car if cocaine found and no occupant claims ownership.

Probable Cause to Search:
Requires evidence which supports the conclusion that
(1) specific items to be searched are connected with criminal activity, and
(2) items will be found in the place searched.
4th Amendment Protections
Reasonable Suspicion
Reasonable Suspicion:
Lesser standard that meets 4th Amendent for stop & frisk, administrative, school, border, workplace searches, and probationers' apartments.
REquires specific articulate facts that criminal activity is afoot.
Can justify limited search/seizure if police believe suspect about to or recently has committed crime.

Individualized suspicion: not required if neutral criteria used for sobriety checkpoints and airport searches.
4th Amendment Protections
Warrants
(a) Search Warrants
Watch for 3 things:
(1) validly issued (neutral magistrate concluding fair probability that evidence will be found based on sworn affidavits containing specific facts),
(2) particularity (items seized must be described with particularity), and
(3) scope (area searched limited to areas that listed evidence could reasonably be found).

Warrant must be timely (not stale).

Officer must knock and announce (mere 20-second wait OK) unless reasonable suspicion of exigent circumstances (destruction of evidence, escape, safety, or a failure to knock-and-announce).

A violation of "knock and announce" rule does not bar evidence mentioned and gathered in search.
4th Amendment Protections
Warrants
(b) Arrest Warrants
(c) Protective Sweeps
Arrest Warrants:
Require probable cause based on evidence that reasonable person would conclude that arrestee committed or was committing a crime.
Required to remove individual from home, unless exigent circumstances.
Can make occupants stay until warrant obtained.
Can keep entrants for up to 3 hours.

Protective Sweeps:
Permitted when arresting if police have reasonable belief based on specific articulable facts that area swept harbors individuals posing danger to persons present.
Permits looking into closets and areas immediately adjoining arrest site from which attack could be launched.
4th Amendment Protections
Warrants
(d) Administrative Search Warrants
(e) Warrantless Searches
Administrative Search Warrants:
Less strict probable cause for health/safety searched.
Implied consent for pervasively regulated activities (sale of weapons, liquor) permits warrantless searches if limited in time and scope.
Failure to give consent is grounds for issuance of warrant;
Firemen enter and stay if arson suspected.

Student Searches:
Reasonable suspicion for student searches, drug testing for all cirricular participants OK (not just for sports)

Public Employees:
Drug testing OK even absent individualized suspicion if real and substantial risk to public safety or national security.
Not permitted for political candidates if for purely symbolic reasons.
4th Amendment Protections
Exceptions to Warrants
(Reasonableness Applies):
(1) Exigent circumstances (& hot pursuit)
(2) Searches incident to a lawful arrest,
(3) auto exception,
(4) Stop & Frist,
(5) Consent,
(6) Plain view,
(7) inventory searches,
(8) administrative/regulatory searches, and
(9) borders & sobriety checkpoints
4th Amendment Protections
Exceptions to Warrants
(a) Exigent Circumstances
No warrant if probably cause present for
(1) belief that delay would endanger officer's physical safety,
(2) removal or destruction of evidence
(3) hot pursuit
(4) public safety or medical emergencies, and need to render emergency assistance.
4th Amendment Protections
Exceptions to Warrants
(b) Search Incident to Lawful Arrest
Search incident to Lawful Arrest:
Police making custodial arrest may search the person and area under immediate control for weapons, fruits, or sintrumentalities of crime (Chimel);
Police lawfully present to arrest may also make protective cursory sweep to protect selves from attack by others.

Vehicle Searches:
Pursuant to a lawful custodial arrest (not routine trafic stops), police may search the vehicle (Knowles, '98).
Can search vehicle incident to lawful arrest of recent occupant even if occupant is outside the vehicle (Thornton, '04)
4th Amendment Protections
Exceptions to Warrants
(c) Auto-Search Exception
Warrantless search of transportation vehicles permitted if probable cause to believe that vehicle contains evidence of a crime.

Any area of the vehicle, including closed containers (e.g. passenger's purse), can be searched.

Need not be contemporaneous with stop and can be at different location.
4th Amendment Protections
Exceptions to Warrants
(d) Stop; Frisk
Stops:
Only if reasonable suspicion that criminal activity has been, is being, or is about to be committed (Terry).
Fleeing is a factor to determining reasonable suspicion (Wardlow).
Detention must be limited in scope and time, tested by due diligence of officer in his investigation.
Consentual encounters not covered by 4th Amendment (Bostick)

Frisks:
Only if reason to believe person is armed and dangerous.
If evidence of weapon found, more thorough search can occur and weapon can be seized.
New "plain feel" (Dickerson, '93) permits seizures of contraband found during legitimate frisks, analagous to "plain view."
Body and objects within wingspan only after a valid arrest (Chimel).
Passenger compartments of cars only with reasonable belief suspect has a weapon.
4th Amendment Protections
Exceptions to Warrants
(e) Consent
Consent to Search:
Watch for 3 things for consensual warrantless searches.

(1) Voluntariness: persons with authority must subjectively believe consent is voluntary.
Judged by "totality of circumstances" including factors such as age, language barriers, etc.
Permitted if voluntary consent given by person with apparent authority.

(2) Authority: Actual or apparent;
objective test for apparent authority - would person of reasonable caution believe that consenting party had authority over the premise?
When two persons present, both must agree to the search. (Randolph)

(3) Scope: Must be objectively reasonable.  Search must stop when consent withdrawn.
4th Amendment Protections
Exceptions to Warrants
(f) Plain View
(g) Inventory Searches
Plain View Doctrine:
Permits warrantless seizure of criminal evidence if seizing officer;
(1) has a lawful vantage point;
(2) has lawful access to the object seized, and
(3) criminality immediately apparent.

Inventory Searches:
Permitted for any lawfully impounded vehicle and any item in possession of arrested person.
Purpose must be to catalogue contents, following standardized criteria and established routine.

Consent to Search Vehicle:
Police need not inform driver that he is free to leave before seeking consent to search vehicle.
If lawful stop, the driver and the passengers may be ordered out of the vehicle for police safety.
4th Amendment Protections
Exceptions to Warrants
(h) Border Searches
(i) Sobriety Checkpoints
Border Searches:
At international borders, an exception to probable cause or reasonable suspicion rule.
Not even mere suspicion required.
Can dismantle vehicles.
For stops and searches near borders, only reasonable suspicion required.
Drug courier profiles establish reasonable suspicion to briefly detain and question.
Strip and body cavity searches require a clear indication that contraband will be found.

Sobriety & Investigative Checkpoints:
Stops permitted even when "individualized suspicion" lacking.
Stop reasonable because of grave interest of state vs slight intrusion to driver.
"Suspicionless" roadblocks to discover drugs is unconstitutional seizure of person.
Investigative roadblocks leading to dsicovery of a DUI driver valid.
Drug sniffing dogs OK for driver speeding, even if offers have no suspicion of drugs.
4th Amendment Protections
Exceptions to Warrants
(j) Vehicle searches
Ok to stop for any violation of law;
warrants preferred for searches.

Exception to warrant requirement for search of vehicles include:
Plain view;
Search incident to a valid arrest;
Immediate area searches under stop and frisk (if police feel threatened);
auto exception (entire auto if probable cause to believe that contraband or evidence of crime is present, including enclosed containers);
inventory search (if a standard practice);
consent
4th Amendment Protections
Exclusionary Rule
Applied to states in Mapp v. Ohio;
deters police misconduct by excluding illegally obtained or seized evidence.

Applies to 4th, 5th, and 6th Amendments.

Evidence itself and "fruit of poisonous tree" excluded from prosecutor's case-in-chief, could be used to impeach & in grand jury proceedings.

Not applicable to non-testimonial evidence found from Miranda violation.
4th Amendment Protections
Exclusionary Rule
(a) Limitations on Exclusionary Rule
Illegally seized evidence can be used:
to impeach, if no motion to suppress made, if taint is purged by other factors (intervening time, voluntariness), inevitable discovery, obtained from a non-police independent source, good faith belief in validity of warrant or statute authorizing seizure, harmless error.
4th Amendment Protections
Grand Juries & 4th Amendment
Serve function of providing a probable cause hearing at federal level.

Can use illegally seized evidence unless obtained by improper electronic surveillance or evidence was already suppressed by court.

FRE does not apply to grand juries.

No right to presence of counsel.
5th Amendment
5th Amendment Privileges
Self-Incrimination
Applies to states by 14th Amendment.

Prohibits coerced confessions for any purpose (including those obtained after unecessary delays), but Supreme Court recently found harmless error if state proves beyond reasonable doubt there was no affect on trial outcome (Fulminante).

In Mitchell, '99, the Court held that the 5th Amendment was violated where the judge imposed a harsher punishment on a defendant who, after pleading guilty, refused to give additional testimony about the crime at sentencing.
5th Amendment
Non-Testimonial Evidence
Immunity
Non-Testimonial Evidence:
5th Amendment does not protect non-testimonial evidence such as fingerprints, voiceprints, body substances, handwriting samples, etc.
Not applicable to videotapes of routine questions to drunk-driving suspects (but not questions testing intellectual agility).
Means used to obtain non-testimonial evidence must not be so invasive as to "shock the conscience" of the court.
No right to presence of counsel when samples given.

Immunity:
Strips person of 5th Amendment right.
Must testify or face contempt.
Use immunity limited to actual testimony and subpoenaed documents;
government can use info produced from independent source.
Transaction immunity is total, but rarely given.
5th Amendment
Police Interrogation
Miranda
Police Custodial Interrogation:
Raises Miranda, due process, and right to counsel.
Miranda requires counsel whenever Defendant is deprived of freedom of action and police conduct = custodial interrogations.
Miranda right must be invoked unambiguously.

Police must advise of 5th and 6th Amendment rights;
exact wording not needed;
recent "public safety exceptions" recognized.
Violation only if statements used against defendant at trial.
Cannot use 2-step at home interrogation (warning given after 1st non-Mirandized confession) if intended to undermine Miranda.
Police must scrupulously honor invocation of Miranda.
Police may interrogate about other crimes;
but once counsel is invoked, interrogation about any crimes is prohibited unless suspect reinitiates & waives his right (Edwards).

Custody determined by arrest-like situation vs, a mere traffic stop.
Interrogation includes conduct or words "designed to elicit information."
All waivers must be knowing, voluntary, and intelligent by preponderance of evidence.
5th Amendment
Due Process
(a) Delay
(b) Psychological Coercion
Police Interrogation-Due Process:
Fair treatment for accussed required.

Watch delay, physical & psychological coercion, and unduly suggestive procedures.

Unnecessary delays between detention and arraignment (6hrs for feds) results in presumption of coerced confession.

Lengthy interrogations (36 hrs) not permitted.

Unfair interrogations (rubber hoses, whips, chains, sleep and food deprivation) not permitted.

Physical invasions (stomach pumping, etc.) must not shock consciousness of court.
5th Amendment
Due Process
(c) Unduly Suggestive Procedures
Lineups must be fair, non-suggestive, and representative.

Presence of counsel not required unless 6th Amendment applies.

Due process requires exclusion of IDs from unduly suggestive lineups (live or photographs) unless in-court witnesses can establish a vivid, independent, and untainted recollection of accused.

One-to-one confrontations (showups) permitted only under exigent circumstances.
6th Amendment
6th Amendment Right to Counsel
Attaches to pre-trial confrontations which occur at or after the initiation of "adversarial judicial proceedings" (formal charge, preliminary hearing, indictment, information, arraignment).

Also applies to sentencing.

No 6th Amendment right to counsel before these!

Post-indictment interrogation without counsel prohibition.

5th Amendment is "offense specific," applies to crime of arrest.

Therefore, can be questioned about "closely related" crimes.
6th Amendment
Grand Juries & 6th Amendment
Scope of grand jury must be specific.

Subpoena can be challenged on vaguess of inquiry focus and composition of jury.

Right to counsel, but not presence of counsel in grand jury room.

5th Amendment self-incrimination may be invoked, unless immunity given.
6th Amendment
Pre-Trial Confrontations
&
Right to Counsel
Attached to pre-trial "adversarial judicial proceedings" (see fc 31).

If court refuses to appoint counsel, no incarceration can be imposed.

Indigents have right to counsel if subject to any loss of liberty.

Interrogations violative of 6th Amendment right to counsel can be used only for impeachment purposes (should defendant testify).
6th Amendment
Probable Cause Hearings
&
Preliminary Hearings
Probable Cause Hearings:
Prima facie hearing to determine if probable cause exists to hold or detain for trial.
No right to attorney for probable cause hearing to detain.
Hearing must be held w/in 48 hour of arrest.

Preliminary hearing determines if sufficient probable cause to try case (critical stage requires counsel).
Jeopardy does not attach to probable cause hearings.

Bail:
no per se right to bail. 
If bail available, 5th and 8th read to prevent "Excessive bail" for feds.
14th Amendment prevents excessive bail for states, if offered.
6th Amendment
Motion to Suppress
Challenges validity of arrest, search, confession, lineup, or wiretap.

Defendant must show by preponderance that evidence illegally obtained through governmental misconduct.

Defendant must have standing, requiring a violation of rights and ownership/possessory interest or reasonable expectation of privacy (see also card #4)
6th Amendment
Motion to Dismiss
Because of vagueness of charges, denial of a speedy trial (prejudice and bad faith must be shown), or double jeopardy, or selective or vindictive prosecution.
6th Amendment
Motion to Dismiss
(a) Double Jeopardy (5th Amendment)
Attaches when jury impaneled and sworn, or when first witness called in a bench trial.

Rule: once jeopardy attaches, Defendant may not be tried again by the same sovereign for the same or lessor included offense.

Does not apply to a victorious Defendant on appeal or a trial terminated by consent for a legally sufficient reason (including materials).

However, on re-trial, a more severe sentence can be sought if new evidence presented (Sattazahn v. PA, '03)
6th Amendment
Motion to Sever
Permitted if joint trial would prejudice defendant;
burden of proof to show prejudice on Defendant: likely if co-defendant confesses and court cannot "sanitize" or Brutonize confession to exclude references to Defendant.

Zafira '93 held "mere antagonism" not enough, joint trial must prejudice a specific trial right or prevent jury from making a reliable judgment on guilt or innocence.
6th Amendment
Discovery
(a) Pre-trial Discovery
Prosecutor must disclose significant evidence that creates reasonable doubt of guilt;
on demand, materially exculpatory information which might affect outcome (but not for plea bargains).

Defendant must give notice of alibi defense and witness of alibi, but only if Defendant requests and is given reciprocal discovery rights.
6th Amendment
Trials
(a) Competency to Stand Trial
An absolute requirement;
If at time of trial Defendant's mental state is so abnormal that he cannot rationally understand the charges or proceedings, or cannot effectively communicate with the lawyer, he's incompetent.

Later trial OK if competency returns;
failure to raise competency is not a waiver;
indefinite hospitalization requires civil proceeding.

"Mere competence" is sufficient to waive jury trial or assistance of counsel.
6th Amendment
Trials
(b) Speedy Trials
Begins on arrest or being charged;
delay caused by prosecutor's negligence or bad faith judged by length, reason for delay, and prejudice.

If right violated, charges must be dropped with prejudice, no further prosecution allowed.
6th Amendment
Trials
(c) Fair Trials
Due process issue (14th Amendment or 5th Amendment): pretrial publicity may require change of venue;
public trials required with unbiased judge & impartial jury.

Jury trial for all crimes of possible 6 month imprisonment;
effective counsel (if incarceration actual or possible).

Right to refuse counsel and right to represent self (but not for appeals).

Court may appoint standby counsel.

Forcible medication for trial competency permitted if:
(1) treatment is medically appropriate
(2) side affects minimal, and
(3) significantly necessary to further important governmental trial-related interests.
6th Amendment
Trials
(d) Jury Trials
Unanimous jury of 12 for federal trials;
lesser for states;
can be waived if knowing and voluntary.

Jury must represent cross-section of community;
no systematic exclusion on basis fo race (or gender, JEB v Ala. '94) by defense or prosecution.

Defendants must only show evidence that "infers discrimination."

No exclusion for opposition to death penalty unless juror could not objectively follow instructions.
6th Amendment
Trials
(e) Competency of Counsel
Presumption of competency;
burden on Defendant to show
(1) prejudice and
(2) performance below community standards so that trial is unreliable or fundamentally unfair.

Strickland v. Wash. requires counsel to avoid conflicts of interest, advocate Defendant's cause (counseling & informing Defendant), and show sufficient skill/knowledge to create a reliable adversarial testing process.

Increased sentence can show ineffective counsel for failure to investigate to show mitigating factors.
6th Amendment
Trials
(f) Guilty Pleas
Record must show plea was knowing, voluntary, and intelligent waiver of 5th Amendment self-incrimination and 6th Amendment right to confront witnesses and right to jury trial.

Can be open or negotiated.

Defendant may withdraw plea if judge refuses deal.

All constitutional rights waived with guilty plea.

Right to counsel attaches to all negotiations.
6th Amendment
Sentencing
Sentencing:
Right to counsel attaches;
if victory on appeal, retrial cannot result in stiffer sentence.
8th Amendment bans cruel and unusual punishment.
Status crimes not punishable (but possession is).
Death penalty permitted if statute gives judge or jury reasonable discretion and guidance.
Judge can override jury recommendation.
Jury must decide facts for sentence enhancements (e.g. hate crimes).
Judges cannot increase criminal sentences (Apprendi, Cunningham).

California 3-strike rule, giving 25-to-life sentence is no 8th Amendment violation because sentence not "grossly disproportionate"
6th Amendment
Sentencing
(a) Death Penalty
8th Amendment Death Penalty:
Not for minors under 18 or rape for retarded persons.

Personal characteristics of victim not allowed for choosing between life/death sentence.

Cannot be based on factors of which Defendant was unaware.

Victim impact evidence can be used in sentencing.

No right to free lawyers death-row inmates who lost initial appeals.

Judge/jury must have reasonable discretion and guidance.

Co-felon who did not do killing can get death penalty if his role was major and displayed reckless indifference to human life (Tison v. Arizona)
Post-Conviction Proceedings
Appeal
Of right or by discretion;
No federal constitutional right to appeal from state conviction, but many states make it automatic for felonies.

Equal Protection requires counsel and payment of fees and expenses for transcripts with mandatory appeals for indigents.

Victory on appeal prevents re-trial for a more serious offense.
Post-Conviction Proceedings
Habeas Corpus
Normal route to federal court review;
Defendant must have exhausted all state remedies and show constitutional rights violations.

Not available for 4th or 5th Amendment coerced confession violations if a full and fair hearing afforded by state courts.

Cause plus actual prejudice must be shown.

More claim of innocence is not a constitutional claim (Herrera, '93).
Post-Conviction Proceedings
Prisoner's Rights
Procedural due process requirements for identifiable constiutional rights, including: access to courts, limited freedom from censorship, press access, adequate medical care.

Disciplinary hearings get limited due process, but no right to counsel.

Probation revocations require counsel only if imposition of a new sentence or if necessary for a fair hearing.
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