Δ does not need to be informed of right to refuse (Bustamonte) or instructed that Δ is “free to go” after lawful seizure concludes (Robinette) TOTC Scope of consent Objective reasonableness – What a typical person understand consent to cover? (Jimeno) Reasonable scope doesn’t include prying open locked briefcase (Wells, 1989) Third Party Consent T must have common authority over the searched area (Cupp/Matlock) Friedman asks whether a roommate could consent to the search of another roommate’s room Police must reasonably believe T had common authority (Rodriguez) A physically present co-occupant can refuse to permit entry (Randolph) Note: Can’t remove Δ in order to circumvent this rule (Randolph) Friedman argues that the absent roommate will almost certainly refuse, so why should it matter that he’s present? Friedman argues consent should be limited to those that own or live in the space, police must ask for specific authority to search a given room – consider if there is exigency, or enough PC to stop and get warrant Examples – Consent Generally Consent of driver to search car yields stolen checks of passenger valid consent even if not informed of the right to refuse (Schneckloth v. Bustamonte, 1973) Δ pulled over and verbally warned for speeding, then consent search yields valid consent even if stop is prolonged and Δ not informed he’s free to go (Robinette, 1996) Examples – Scope Consent of driver after running red light yields cocaine in paper bag on floor scope is wherever objectively reasonable (Jimeno, 1991) Examples – Third Party Consent Cousin of murder suspect can consent to search of common bag (Cupp, 1969) Consent of third party with common authority is valid over absent, Δ handcuffed in police car (Matlock, 1974) Consent of third party to search “our” apartment valid if officers have reasonable belief of common authority (Rodriguez, 1990) Georgia v. Randolph (2006) Plurality – Consent search of shared dwelling over express refusal of physically present resident is not justifiable Can be no evidence Δ was removed to avoid objection Breyer Concurring – TOTC, or plurality if bright line, Dissent – AofR Policy bridge PC gap Ability to consent in lieu of waiting for warrant Consent to search for a crime unrelated to the person giving consent Consent of third party Assumption of risk – But consider maid can’t let police into hotel room trial trial
Constitutional drug testing for all extracurricular activities (Earls, 2002) Convicts Probation officers can search probationer’s home on reasonable suspicion – Based on special need (Griffin, 1987) Probation officer/cop can search probationer on reasonable suspicion – Based on consent (Knights, 2001) Samson (2006) Parolee searched by police officer on zero suspicion results in methamphetamine Holding – Valid suspicionless search Balancing – TOTC Parolees have very low expectation of privacy Government wants to ensure Δ isn’t committing crimes still Friedman is uncomfortable with this unbridled discretion for officers, only possible justification would be special rule restricting to parolees Employees Test Government can search if it is justified at inception and limited in scope Government can also conduct random searches (Von Raab) Upheld statute for drug tests after train accidents Overturned drug testing for candidates for GA state offices O’Connor v. Ortega (1987) – Upheld search of doctor at government hospital Administrative Searches and Alternative Safeguards Test Requires regulatory warrant equivalent (administrative standards) (Camara) Limit officer discretion – Time, place, scope (Burger) Notice that search is possible (Burger) Balance (Burger) Substantial government interest that informs regulatory scheme Inspection is necessary to further regulatory scheme Factors (Camara) History of this type of inspection Closely regulated industry (Burger) Public interest in curbing dangerous condition Reasonable alternatives of intrusion (not looking for personal effects) Examples Camara (1967) Government entering private for safety inspection Holding: Inspection is unreasonable requires regulatory warrant equivalent Time between inspections, age of building, etc. – objective criteria Burger (1987) Regulatory inspection of a junk yard by auto-crimes division
Profiling Whitman – Race can be a but not the factor DOJ Ordinary crime – Only in specific investigations for specific suspect Cannot be used in routine law enforcement decisions National security – To the extent permitted by the Constitution Limited only by EPC EPC Analysis – Use of race in profile triggers strict scrutiny Requires Facial classification (i.e. we stop all people of a race) Specific discriminatory intent (i.e. I stop this person because of his race) Normally rational basis Legitimate purpose Rationally related to that purpose Race based pretext invokes strict scrutiny Compelling state interest Solution is narrowly tailored to the solution you’re seeking Harcourt – Profiling Muslims post-9/11 doesn’t work because of substitution effects (profile is a moving, adaptive target) (see O’Connor in Arvisu – arguing that profiling post-9/11 may be ok) Kennedy – Creates a “race tax” Freidman – Profiling causes two problems – analysis should be strict scrutiny Causes hit rates to go up within the profiled group so becomes self-fulfilling Can’t be examined ex post, requires ex ante random selection to confirm statistical bias exists between races otherwise there is observer bias Narrow tailoring requires knowing how many people of a race commit a crime Given a higher hit rate in one pool than another, the probability of anyone being a terrorist is so low that targeting one group will still fail strict scrutiny Can’t just round up thousands of people based on a single attribute Profiling invokes strict scrutiny under EPC – Compelling interest (crime control/deterrence), narrowly tailored (stats showing proclivity, something else) THEORIES AND HISTORY OF THE 4TH AMENDMENT Test is about reasonableness and concerns for general warrants Scalia (warrants immunized officers for trespasses), Amar, Taylor People must be secure against unreasonable searches, and no warrants shall issue without probable cause Friedman – Historically the trend at the time of the framing was towards more specific warrants, reasonableness searches dangerously approach general warrants Amsterdam The problem with the reasonableness model is deference – appeals court to court and court to police too much = no safeguards Without articulable rules, police are unconstrained To make the 4th Amendment internally coherent Warrantless searches that exhibit the same characteristics as general warrants and writs must be deemed unreasonable if there is no principled basis for distinguishing them from general warrants and writs
Alternatives Videotaping, ban custodial interrogation, City of Riverside solution – require magistrate before 48hrs or exclude (See McNabb/Mallory) Have the magistrate conduct the questioning on threat of contempt Cases – Generally of Aaron Burr (1807) Δ refuses to testify as to whether he prepared a document Government argued testimony could be compelled so long as the testimony itself is insufficient to convict Δ Holding: Witness must judge for himself whether to answer – can’t be compelled Murphy v. Waterfront Commission of New York Harbor (1964) Policies that underlie privilege Trilemma of self-accusation, perjury or contempt – unwilling to subject Δ Preference for accusatorial over inquisitorial system Fear of inhumane treatment and abuses Putting government to its proof – Government should leave people alone until good cause is shown for disturbing them, and requiring the government to shoulder the load in its contest against Δ Individual right to privacy Distrust of self-deprecatory statements While privilege shelters some guilty, it protects many innocent Schmerber v. California (1966) Δ convicted of DUI, officer instructed doctor at hospital after accident to take blood and measure BAL – Δ had refused on advice of counsel, but compelled Holding 6th Am. is not violated when lawyer erroneous advice 4th Am.: This is a search, on PC, no warrant exigency Subject to reasonable means and procedure – doctor in hospital NOTE: Blood test is not per se exigency, look at TOTC (McNeely) 5th Am. argument that Δ is compelled to bear witness against himself 5th Am. only protects testimonial/communicative evidence, not demonstrative/physical evidence E.g. can compel finger print, photo, try on clothing, say something cannot compel lie detector (response to interrogation) Cases – Immunity Statutes Counselman v. Hitchcock (1892) Government argues “use immunity” is sufficient to compel testimony Testimony itself can’t be used in but derivative evidence is allowed Holding: Use immunity is insufficient to compel testimony No protection from police using testimony to drum up leads, 5th Am. applies to all criminal proceedings (including indictment) v. Walker (1896) Holding: Transaction immunity satisfies the demands of the 5th Am. Testimony operates as a complete pardon for the offense to which it relates
Minnick 1990 When counsel is requested, can’t reinitiate interrogation without counsel, even if Δ has consulted with counsel Davis 1994 Right to counsel must be unambiguously invoked US v. Dickerson 2000 Miranda is a constitutional decision of the court, thus can’t be overruled by an Act of Congress embedded in routine police practice/part of national culture Seibert 2004 Bad faith question-first tactic requires curative measures (factors); good faith question-first violation of Miranda is under Elstad Patane 2004 Physical fruits of a Miranda violation are admissible (note: still must be a voluntary statement) Powell 2010 Warnings don’t have to be literal, just have to get the point across Shatzer 2010 14d break is long enough break in custody to requestion after Δ asserts right to counsel Berghuis 2010 Suspect who receives and understands Miranda, waives the right by making an statement to police J.D.B. 2011 Age is considered in determining whether Δ is in custody v. Fields 2012 Person in prison doesn’t automatically mean custody – need inherently coercive pressures as in Miranda 6th Amendment – ----- denotes cases that erode the right Case Year Rule Massiah 1964 Police cannot question Δ without attorney once 6th Am. right has attached and critical phase (i.e. interrogation) Escobedo 1964 Fact intensive holding amounting to right to attorney after Δ invokes Brewer 1977 Police violate the 6th Am. when they deliberately attempt to elicit incriminating statements from Δ Henry 1980 Post-indictment statements to jailhouse informant that deliberately elicited statements inadmissible Moulton 1985 Informant can elicit statements from Δ for any crime Δ has not been indicted for Kuhlmann 1986 Volunteered statements to jailhouse informant are admissible so long as Δ made them spontaneously and informant didn’t elicit – “luck and happenstance” Moran v. Burbine 1986 Right attaches at first formal charging proceeding Fulminante 1991 Informant can’t elicit statements by using threat of assault from other inmates Rothgery 2008 attaches at first hearing, counsel present at critical stages, critical stages are necessary to guarantee effective assistance at (interrogation is critical stage) Montejo 2009 Waiving the right to counsel under 5th or 6th Am. are both governed by Ventris 2009 Statements made in violation of Massiah can be used for impeachment