4th 5th 6th Amendments

15 November

• Standing when addressing a court or witness allows you to take the stage, use your diaphragm, and show respect. If at all possible, do it.
• Argument section is due Friday 12/10; 5:00PM.
• The exclusionary rule is aimed at police misconduct.
• Prosser in State v. Eason: baseball analogy (if you fail to touch all bases, you don't score, you are out).
• But there are exceptions. Even in cases where someone's rights have been definitely violated, we might still want not to exclude that (really persuasive) evidence. Excluding is politically unpopular, and also LEOs don't like it, and there's a cost to society.
• Exceptions regarding source (the state could have attained this end properly, so excluding the evidence would put them in a worse position than they otherwise would have been in, and we don't want them)
  • Independent source: actually was found by some other means. Nothing from a tainted source can get into the application for a search warrant. Murray v. United States. So we can remove any unconstitutionally obtained evidence, and things come out the same, because there was another legitimate path of discovery. Note, however, that if there were collusion between the teams executing on the two different paths, it might be hard to prove. Bascially, the court just needs to find that the "legitimate" side didn't rely on tainted information.
  • Inevitable discovery: would have been found by another means (Nix v. Williams - this is the second go-around on habeas for the hero of Brewer v. Williams. The court is pretty certain that the volunteer searchers would have found her, in more or less the same condition-- thanks to low temps-- as they did as a result of his incriminating statements). State must show by a preponderance of the evidence (not clear and convincing) that the evidence would have been found; they don't have to show certainty (although the standard is inevitability-- we can't just chain together a bunch of fairly likely events). Good faith is irrelevant because the discovery was inevitable. Interesting footnote: is this a tacit presumption that police are not smart enough to conduct bad-faith searches with the plan of later developing a pathway to inevitable discovery? As a defense attorney, how would you prove this is going on?
  • Attenuation: three part test (this is State v. Richter in WI)
    1. Temporal proximity between the police misconduct and the seizure
    2. Purpose and flagrancy of the official misconduct
    3. What was the reason for the police misconduct (this is the meat of the analysis, generally)
• Exceptions regarding circumstances (i.e., this wouldn't deter anything).
  • Good faith in the law
  • Good faith in the warrant: Leon v. US - the warrant was fine, so long as the officers knew. Only after the fact was the warrant found not to be founded on sufficient probable cause. We're deterring police misconduct here, and there wasn't any-- this was the judge's mistake. Judges are presumed to be neutral, not adversaries of defendants. If you rely on th judiciary, and there's an error in finding probable cause, it's in good faith. This applies to clerical errors by LEOs also: Herring v United States.
• It may have been a mistake to adopt a punitive model (i.e., the exclusionary rule as a punishment for police misconduct) rather than a neutral "enforce rights" model; that model may have foreordained ever-growing exceptions.

17 November

• Actually, Madison's internal affairs/review board is pretty proactive, it turns out. There's debate, given standards like this, about whether the exclusionary rule is now superfluous.
• So is Herring a big deal? If a police officer makes a reasonable error of fact, that's excusable neglect, according to that case. Does this apply to reasonable errors of law? Looks like, mostly. So, AZ. v. Gant rules in WI: reliance on law that changes after the search is OK (put another way, if the law changes in such a way that a prior search is rendered unconstitutional, the good faith exception protects searches conducted in reliance on the prior law).
• "Reasonable suspicion" and "probable cause" are soft terms. See, e.g., the NYT articles about stop-and-frisk.
• What do you need to effectuate a seizure? Reasonable suspicion. Just approaching and asking questions isn't a seizure, of course. What does it mean to consent to a seizure? You're seized when a reasonable person (not the specific person in the incident) would feel like they couldn't leave.

  The difference between Royer and Mendenhall is that Royer's ticket was taken.

  Oh, and who is a "reasonable person?" In reality, this probably means the judge.

• The seizure has to be justified at its inception, and if the police want to draw it out, they need reasonable suspicion for doing so.