*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Criminal Procedure Outline I - Part 4

Download the PDF version of this outline

<< Part 3

M. Exclusionary Rule

  1. Analysis Steps
    1. What is the “Tree” (violation)
    2. What is the “Fruit” (evidence)
    3. Does the Fruit come from the Tree?
      1. (1) Independent Source
      2. (2) Inevitable Discovery
    4. Is it still connected enough to justify exclusion?
      1. (1) Dissipation of Taint
  2. Exceptions:
    1. Independent Source: evidence was found independent of the violation
      1. (1) Murray: Police have PC that there are drugs in warehouse BUT also break in and check to see. Warrant didn’t include the break-in and so there was PC independent of that violation = valid
    2. Inevitable Discovery: the police would have found the ‘fruit’ anyway
      1. (1) Nix v. Williams: search for little girl body was well underway and they were already in the area where the body was located → just a matter of time → christian burial speech not a violation
    3. Dissipation of the Taint: has there been enough separation between violation and evidence to warrant keeping it?
      1. (1) Factors:
        1. (a) Length of time between the two
        2. (b) Flagrancy of initial conduct
        3. (c) Intervening Causes
        4. (d) Act of Free Will
      2. (2) Utah v. Strieff: suspicionless stop leads to finding out guy has a warrant for arrest → it’s gucci
        1. (a) Length of time: nothing really
        2. (b) Flagrancy: D. wasn’t acting out of order
        3. (c) Intervening Cause: Warrant = BIG intervention
        4. (d) Free Will irrelevant
      3. (3) Wong Sun → shitshow but there was exclusion and admission based entirely on how bad police treated the suspects AND how far removed from the initial BS tip the info was and consent was
    4. Good Faith: Officer’s conduct not the problem = ok
      1. (1) US v. Leon: warrant was later found to be invalid/insufficient PC = still ok b/c officer didn’t deviate and performed search based on previously valid PC and under good faith
        1. (a) Reasonably relied on the validity of a facially valid warrant issued by neutral and detached magistrate
        2. (b) Objective determination → still can suppress if warrant has misleading info (Franks) or magistrate wholly abandons judicial role (Lo-Ji Sales) or situations where no indicia of PC (BE CAREFUL FOR THIS)
      2. (2) MA v. Sheppard: Judge gave officer an order to his warrant was valid despite not being particular enough = officer relied on judge = no suppression
      3. (3) Hudson v. Michigan → Knock and Announce violations = no exclusionary rule
      4. (4) Herring v. United States: inaccurate recordkeeping + good faith = no exclusion → where sheriff arrested guy based on bad OFA when he came to get his car from impound lot
      5. (5) Davis v. United States → GF of officers acting in accordance w/ GF precedent = no suppression if SCOTUS changes or overturns.

II. 5th Amendment

A. Confessions

  1. Voluntariness
    1. Hector (A Slave) v. State → determination of whether confession is made freely and voluntarily = matter for judge not jury
    2. Due Process Aspect
    3. Chavez v. Martinez → the ‘process that is due’ for a terrorist about to kill millions may be different than regular criminal
    4. Colorado v. Connelly → crazy guy believes he either confesses to murder or will have to commit suicide per God. Col. Sup. Court = it was coercive to take confession ; SCOTUS = NOPE, this is chill (GOOD)
    5. Spano v. NY: Spano is ‘derivative citizen’, 25 years old, and was subjected to extremely long interrogations where he was denied access to his attorney, not given food or drink, and psychologically subjected to best friend (cop) interrogation → NOT DP; TOC. Relevant factors
      1. (1) Foreign born
      2. (2) No history of criminal behavior
      3. (3) Little education and emotional instability
      4. (4) Subjected to CX by prosecutor w/o his attoney (refused permission to see him)
      5. (5) Wee hours of night
      6. (6) Non stop
      7. (7) Psychological warfare
    6. Arizona v. Fulminante → Confession of child murderer/rapist was coerced b/c of physical threat of violence that remaining in prison posed. Man would do anything to save his own life
    7. SCope:
      1. (1) 5th is broader than DP → protects against more scenarios
      2. (2) When violation occurs → right not to be coerced = infringed at moment coercion happens; 5th = slippier b/c
        1. (a) Kastigar v. United States: use and derivative use-immunity → implicit violation only occurs if compelled testimony is used
        2. (b) Chavez v. Martinez → compelled testimony = no violation bc martinez not forced to testify
    8. Involuntariness Factors:
      1. (1) Ppl like Spano (no crim history, no education, surrendered, immigrant)
      2. (2) Youth
      3. (3) Mental incapacity
      4. (4) Police methods

B. Miranda v. AZ: specific requirements set out for establishing knowledge of 5th rights:

  1. Warning Itself:
    1. Must be warned you have right to remain silent
    2. Anything said can + will be used against you;
    3. And warned you have right to attorney (even appointed)
      1. (1) Must be given opportunity to express those rights
      2. (2) May exercise those rights at any time during interrogation
      3. (3) May waive those rights but nothing can be used against you w/o voluntary waiver
  2. Pushback:
    1. Harris v. NY: uncounseled statements can be used for impeachment purposes
    2. Michigan v. Tucker: warning itself doesn’t mean constitutional right (just a factor in analysis)
    3. NJ v. Portash: Coerced statements, as opposed to Miranda, ALWAYS 5th violation
  3. Narrowing Miranda:
    1. NY v. Quarles: officer is given description of armed suspect. Upon Terry stop and frisk finds empty holster and asks where gun is. Gets it and then reads Miranda and arrests the man → no Miranda violation b/c of a PUBLIC SAFETY EXCEPTION → gun loose is dangerous in grocery store so needed to find it before Miranda
    2. Oregon v. Elstad → Guy admits in his living room he did something and then police arrest, take to station and read miranda and go over details → no ‘fruit of poisonous tree issue here b/c Miranda is not a constitutional violation = not a poisonous tree. Pre Miranda statements suppressed but post = gucci
    3. Dickerson v. United States → Congress cannot overrule Miranda → Miranda is a ‘constitutional rule’ and therefore w/o change to constitution there is no congressional regulation
    4. MIssouri v. Seibert (NOT IN POWERPOINT) → Basically, plurality reasoned that TOC warranted no statement (check notes)
    5. TRAFFIC STOP = NOT CUSTODY/INTERROGATION: Berkemer v. McCarty → when the guy made statements during traffic stop = not an arrest, this would be ridiculous. Statements made at station house = not warned = not allowed
    6. INTERROGATION = any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject = here that wasn’t found even though it was a convo between officers re: handicapped girls + shotgun used in robbery
  4. Waiver
    1. No express waiver needed
      1. (1) NC v. Butler: where Butler was provided w/ a written waiver form after Miranda warning and he refused. Then proceeded to give inculpatory statements → nothin said express waiver is necessary = chill af
    2. Waiver Implied From:
      1. (1) Silence
      2. (2) Understanding of rights
      3. (3) Course of conduct indicating waiver (TOC)
  5. Invocation of Rights→ Under 5th
    1. Edwards: waiver of right to counsel, once invoked, is not done by showing D. continued answering questions BC INTERROGATION MUST CEASE WHEN EXPRESS REQUEST FOR ATTORNEY IS MADE UNLESS SUSPECT “INITIATES” CONVO
      1. (1) Oregon v. Bradshaw = initiation occurs only when an inquiry from a suspect can be fairly said to represent a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation
    2. Davis → MUST BE EXPRESS → must say “I want a lawyer” not “Maybe I should have lawyer”
    3. Berghuis → right to silence and counsel = same invocation = express
    4. Minnick v. Mississippi: guy requests counsel and then after weekend officers resume interrogation = violation
    5. MD v. Shatzer → 2.5 years elapsed between invocation and second waiver/request/incriminating statement = unanimous court says 2 weeks = coverage
III. 6th Amendment - Right to Counsel

A. Difference btwn 5th and 6th

  1. 5th = must expressly waive right to counsel
  2. 6th = right to counsel need not be invoked & EVERY REASONABLE PRESUMPTION AGAINST WAIVER

B. Scope:

  1. Illinois v. Patterson: did post-indictment questioning w/o attorney violate 6th? NO b/c D. was sufficiently aware of his right to counsel (warned twice w/ Miranda) and chose to continue anyways → waiver was found to be voluntary
  2. Massiah: applies to indirect and surreptitious interrogations used as work-a-rounds to 6th Amend → guy was released on bail and gave incriminating statements to informant cohort. (could not be used against him)
  3. Brewer v. Williams: Burial speech case w/ terrible facts → this man did not waive counsel b/c he clearly wanted counsel (went to great lengths) and this burial speech was used as a way around that.

Analytical Attack Sheet:

  1. Is this the action of a government actor? (or where Gov. is prompting the action?) No = no 4th
  2. Is this an action against someone “in the Nat’l community of the United States”? No = no 4th
  3. Is there a physical trespass? No = possibly no 4th, see #4
  4. Is there a REP? (Subjective+Objective Ex. of Privacy) No = no 4th
    1. a. Exceptions to REP: false friends, third party, dog sniffs, aerial surveillance, thermal imaging
    2. b. Factors to consider: Place intruded, lawful vantage point, method/mode of intrusion
  5. If REP, was search “reasonable”? Yes = no 4th
  6. Arrest = was there a warrant?
    1. a. No = was there PC? No = invalid/ 4th violation
  7. Search = was there warrant?
    1. a. No = Was there PC?
      1. No = was there exception? (Exigent, SILA, Automobile, Container, Plain View, Inventories)
        1. No = 4th violation
Related Topics

The Charlotte lawyers at Powers Law Firm PA are dedicated to compassionate legal representation, predicated on superlative knowledge, trial skills, and conscientious advocacy.

The gift of a legal education extends beyond a fulfilling way to earn a living. Omni autem cui multum datum.

Bill Powers - Bill@CarolinaAttorneys.com

Carolina Law Blog / Awards and Certifications

Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together... J.R.
Bill Powers and his firm were a true blessing. If anyone is contacting an attorney, it's more than likely not from a positive life experience. If there was a rating for "bedside manner" for lawyers he'd get a 10/10 for that as well. The entire staff were helpful... K.C.
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.