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Criminal Procedure - Outline Part 26

By Collin B. Hardee

Download the PDF version of this outline

<< Part 25 | Part 27 >>

6. Remedies for 4th Amendment Violations

a. Standing

Criminal Procedure Flow Chart
  1. General → before evidence can be excluded, court must determine whether the person seeking exclusion has the right to bring the 4th Amendment claim
    1. Each defendant (on an individual basis) has to prove, personally, that he had “standing’ to raise the 4th A claim – “the established principle is that suppression of the product of a 4th A violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” (Alderman)
    2. The 4th A rights are personal rights which, like some other constitutional rights, may NOT be vicariously asserted. (Jones)
    3. Remember: Standing must be asserted at suppression hearing
  2. Starting Point → Is the defendant the person whose rights were violated? (Payner)
  3. Rakas Standing Test → Only a person with a legitimate expectation of privacy (Objective Katz Prong) in the place searched or thing seized may challenge a search or seizure as unconstitutional
    1. Defendant bears the burden of proving standing in the defendant’s first motion to suppress
    2. Note for Cars: a passenger of a car always have standing to challenge the initial stop; as well as the owner if the owner is present
    3. Exception: Passengers of car can show a reasonable expectation of privacy in some areas of the car search if that passenger has legitimate ownership over the object (e.g., if the search was through the passengers wallet/purse/container/etc.)
  4. Houses
    1. Overnight Guests → has a legitimate expectation of privacy and therefore has standing to object to the police’s warrantless entry of the premises where the guest is staying (Olson)
    2. Business Visitor → normally NOT have standing to object to a search of the premises, at least where the visit is a brief one unaccompanied by any real personal relationship between guest and host, even where the visit takes place at a home rather than an office or other traditional place of business (Carter)
      1. Someone temporarily in another’s house, and present to conduct a business transaction, does not have a reasonable expectation of privacy in the house
      2. Just commercial purposes = no standing

b. 4th Amendment & The Exclusionary Rule (Fruit of the Poisonous Tree Doctrine)

  1. Purpose of Exclusionary Rule:
    1. To deter police misconduct → creates punishment for violation and incentive for police NOT to violate 4th A
    2. Judicial integrity → “if the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” (Mapp)
  2. Steps:
    1. What was the alleged constitutional violation, i.e., what poisoned the tree?
    2. What is the evidence obtained, i.e., what is the fruit?
    3. If not for the violation, would that evidence have been found, i.e., did the fruit come from the poisoned tree?
    4. If so, is there an exception that sufficiently removes the poison from the fruits?
  3. Exceptions to Exclusionary Rule:

1. Independent Source Doctrine

  1. General: In the situation where the police are illegally on premises, discover particular evidence, then apply for a warrant, and “rediscover” the evidence, as long as the trial court is convinced that the illegal entry did not contribute either to the officer’s decision to attempt to get a warrant or to the magistrate’s decision to grant the warrant, the evidence will be admissible even though its initial discovery was illegal
  2. Rule: so long as the prosecution can show that the officers would have applied for an properly received a warrant even had they not first entered the premises illegally, the evidence found could be admitted
    1. NOTE: it does not make any difference that the evidence that was actually discovered during the initial warrantless entry
  3. Requirements according to Murray:
    1. police must have been on the premises illegally at the moment they initially discovered the evidence/contraband in question, i.e., the police ended up on the premises for which they did not have a SW, and no exception to SW exists;
    2. although police didn’t have a SW, at the moment of entry they must have had knowledge that would have entitled them to procure a SW, i.e., police already had PC to believe that evidence of crime would be found on the premises; and
    3. the police must show that they would probably have eventually applied for a SW even had they not engaged in the initial illegality
  4. Summary:
    1. Government must show that they were going to get SW regardless of the initial discovery by proving:
      1. The agents were going to seek the SW before they discovered the evidence/contraband during the illegal search; and
      2. Was any of the info obtained during the illegal search presented to the magistrate in the support of the SW?
  5. Burden of Proof – Preponderance of the evidence

2. Inevitable Discovery Doctrine

  1. General: Evidence may be admitted if it would “inevitably” have been discovered by other lawful police techniques had it not first been obtained though the illegal discovery
    1. Harder to prove that Independent Source
  2. Burden of Proof: prosecution bears burden of showing, by a preponderance of the evidence, that the info would inevitably have been discovered by lawful means
  3. Application: applies where derivative evidence is a weapon or body whose location the police learn from an illegal source or improperly-obtained confession

3. Attenuation (“Dissipation of Taint”/ “Purging of Taint”) Doctrine

  1. General: when the police obtain a piece of evidence indirectly through a constitutional violation, if enough additional factors intervene between the original illegality and the final discovery of evidence, neither the “deterrence” nor “judicial fairness” rationales behind the exclusionary rule applies; therefore, the evidence may be admissible despite the fact that it would not have been discovered “but for” the illegality (Wong Sun)
  2. Attenuation Factors:
    1. Length of time between initial violation and final discovery;
    2. Flagrant of initial violation;
    3. Amount of intervening causes;
    4. Presence of an act of free will
  3. Justice Thomas Articulating Three Attenuation Factors from Brown v. Illinois:
    1. the temporal proximity of illegality/constitutional violation and the evidence obtained from it:
      1. Shorter time (2 hours between illegal arrest to confession of the arrestee) → Inadmissible
      2. Longer time (several days) → Admissible
    2. presence of intervening circumstances between the illegality and the fruit:
      1. Presence of valid AW unconnected w/ illegal stop was enough to “attenuate” the connection between the unlawful stop and the resulting search → Admissible
      2. No intervening events of significance → Inadmissible
    3. of particular importance, the purpose and flagrantly of the official misconduct:
      1. The illegality had a quality of purposefulness – the police conceded their purposes for arresting D without PC was solely investigatory, making it an “expedition for evidence in the hope that something might turn up” → Inadmissible
      2. Officer was at most negligent and should have asked D whether he would speak with him, instead of demanding that he do so → Admissible

4. Good Faith Exception

  1. Only Applies to SW (or AW but must more rare)
  2. General Rule → Evidence obtained through reasonable reliance on a facially valid search warrant, that is later determined to be invalid, is not gathered in violation of the 4th A and such evidence is admissible at trial (Leon)
  3. Application: When police obtain evidence in reasonable reliance on a SW which appears facially valid, but which is later determined to be invalid
  4. Reasoning → “It is the magistrate’s responsibility to determine whether the officer’s allegations establish PC. An officer cannot be expected to question the magistrate’s PC determination or his judgment that the form of the warrant is technically sufficient and penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of 4th A violations.” (Leon)
  5. Four (4) Exceptions:
    1. Officer lied (or reckless disregard of truth) in affidavit on which the PC determination was made (Franks);
    2. Magistrate wholly abandoned judicial role and was no longer “detached and neutral” (Lo-Ji Sales);
    3. “Bare Bones” Affidavit that is so lacking in indicia/indication of PC (quantity is not the same as quality, but short affidavit probably bare bones);
    4. Facially deficient b/c clearly lacks particularity, i.e., gives too much deference to police
      1. If no exceptions, then admit evidence
  6. Other Applications of Good Faith Doctrine:
    1. Evidence admitted when police officer relied on a state statute that was later declared unconstitutional (Krull);
    2. Evidence admitted when police officer relied on an error of a court-managed database (Evans);
    3. If the police fail to properly follow the knock-and-announce rule, the evidence they find may still be admitted at trial (Hudson);
      1. “What the knock-and-announce rule has NEVER protected is one’s interest in preventing the government from seeing or taking evidence described in a warrant”
    4. Where police personnel act negligently (i.e., via a clerical error by sheriff’s office), but not recklessly, and lead an officer to reasonably believe an AW exists, the evidence obtained pursuant to that unlawful arrest remains admissible, at least where any police misconduct consist of “non recurring and attenuated negligence” (Herring)
      1. The Exclusionary Rule serves to deter “deliberate, reckless, or grossly negligent conduct, or in some instances recurring or systemic negligence
      2. Objective Test: Whether a reasonably well-trained arresting officer would have known that the search was illegal in light of all the circumstances
      3. Summary: when police mistakes are the result of negligent, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way
    5. A search conducted in objectively reasonable reliance upon binding appellate precedent that has since been overruled is not subject to the exclusionary rule (Davis)
    6. NC does not have a GF exception in Constitution but legislature enacted one (Carter)
    7. Summary: If the interests that were violated have nothing to do with the seizure of the evidence, or the policies/interests behind the reasons for the rules, the exclusionary rule is inapplicable
      1. Look to the interests protected by the constitutional guarantee and whether suppression of that evidence would serve that interest
      2. General rule is that the good-faith exception applies to all “non-culpable, innocent police conduct.”
    8. Question to ask → Would suppression of the evidence do anything to deter police misconduct?

5. Impeachment

  1. General:
    1. Only applies if defendant goes to trial
    2. Unlawfully obtained evidence may be used to show defendant is lying for impeachment purposes if defendant takes the stand and denies evidence
7. Police Interrogations & Confessions (5th Amendment)

a. Applicable Constitutional/Legal Doctrines:

  1. Voluntariness (5th & 14th Due Process)
  2. Self-Incrimination & Miranda (5th)
  3. Right to Counsel (5th & 6th)

b. Voluntariness Doctrine – Voluntary Confessions

  1. Torture & Confessions
    1. The Due Process Clause of the 14th Amendment requires that state action be consistent with fundamental principles of liberty and justice
      1. Violence used to get confession violates the Constitution, i.e., convictions resting solely on confessions induced by violence perpetrated by state actors are not consistent with the Due Process Clause and such evidence is therefore inadmissible at trial (Brown)
    2. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause
      1. Some sort of state action is required to support a claim of violation of the Due Process Clause of the 14th Amendment (Connelly)
  2. Voluntariness Standard – Would a reasonable person believe that police conduct was sufficient to overbear the suspect’s will?
    1. Test → Based on the totality of the circumstances, was the suspect’s will overborne by police conduct?
    2. Factors:
      1. Presence of violence?
      2. Threats of violence? (Fulminante)
      3. Threats of non-violent but coercive conduct? (E.g., taking children away, etc.)
      4. Nutritional or sleep deprivation?
        1. Interrogation for over 7 hours
        2. Through the night
      5. Psychological pressures?
        1. History of mental/emotional instability (Spano)
        2. Amount of officers present at once
        3. Denying/ignoring request for attorney
        4. Use of police officer friend to sympathize
    3. Police Promises → Police must be able to keep all promises made or else confession is involuntary → may only indicate they will bring cooperation to prosecutor’s attention
    4. Police Trickery/Deception → “Reasonable” deception is allowed, but should try everything else first because police run the risk of losing credibility with the jury because of lying

c. Self-Incrimination (5th & Miranda);

  1. General Rule → Police must give procedural safeguards (i.e., Miranda warning) whenever suspect is in custody being interrogated by the police (PIC)
  2. Purpose → Miranda is a prophylactic rule, i.e., it is not a constitutional right, but it protects a suspect’s constitutional right against self-incrimination guaranteed by the 5th Amendment
  3. Miranda’s Premise → the danger of coercion results from the interaction of custody and official interrogation, whereby the suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess; protecting a suspect in a “police dominated atmosphere” from compulsion
  4. Miranda Warning:
    1. Right to remain silent;
    2. Anything you say can & will be used against you in a court of law;
    3. Right to consult with an attorney AND have attorney present during questioning;
    4. If cannot afford an attorney, one will be appointed to you;
    5. Right to stop the interview at any point
  5. NOTE: Non-Mirandized Statements May Be Used for Impeachment Purposes
  6. Offense General → Once Miranda Rights are invoked by suspect, rights apply to ALL crimes, not just the ones arrested for, i.e., cannot talk about anything
  7. No Vicarious Assertion → suspect must invoke for himself
  8. Miranda is a constitutional decision and cannot be override by congress (Dickerson)
  9. Miranda applies to MISDEMEANORS; applicable regardless of severity of offense
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