Criminal Procedure : Week of April 7

April 7

• Suppose I Terry-stop you, and I find a weapon. Then I can arrest you for the weapon and search the heck out of you (it's now a search incident to arrest).
• The exclusionary rule doesn't make the evidence go away-- it can't be used in a trial against you, but it can be used as a basis for other investigation, or against another person, or considered at sentencing. Is that a good standard? Note that evidence will still be excluded, even if it's clear that deterring the police wouldn't change the case. Note also that it only protects against use at trial-- not plea agreements.
• The rationale for the rule is that it is a deterrant: does it deter? Laws tend not to discourage criminals. For example, what is the cost to the police of having evidence excluded at trial? Failure to convict, maybe. Or reputation, maybe.
• Maybe in the end, it's not a just a deterrent. Maybe part of the reason it's important is just that the USSC has said it is. We take guidance from that-- so it prevents abuses, just because this authority figure has said so.
• Who is punished when the evidence is excluded? The public, because criminals go free. Maybe the DA, who wastes resources.
• The irrationality of the exclusionary rule bothers people: why we have it, and what it does.
• Note that there's a difference between exculpatory evidence (must be turned over) and stuff that makes it harder to prove the suspect's guilt.
• Exceptions to the exclusionary rule: can we link them to the rationale for the rule? I.e., it's important to deter the behavior if it's important to deter the behavior. Why should inevitable discovery make it OK for the police to violate 4A rights?

8 April

• Who is the victim in a drug sale where both parties are willing? The neighbors, maybe. It's like the harm of risk creation or recklessness. On the one hand, what is the harm if nobody is hurt? On the other hand, it's very potentially destructive, and society holds its norms dear.
• Sampson's crime triangle. The conventional approach is to think about how we can affect offenders in order to produce the desired results. But maybe there are other things we can do.
• Midterm. Let's all work together on an answer. What is the first thing we do when we get the exam? Read it. What is the next question: who am I? A lot of the difficulty will go away if we are very clear about who we are and what our role is. Next, who is the client?

  Dave is our client. There is no way around that. Anyway, the first thing we do is sort out to whom we owe attorney obligations.

  Should seek witnesses: the extra homeless people outside the bar. We would be interested to know what they would say.

  We would like to get the complaining witness to back out.

• Michigan v. Long
  You can look under the seats, but not in the trunk. These rulings are somewhat mechanical, and they are meant to be: the supreme court wants us to have bright-line rules for what can be searched. Questions about hatchbacks, SUVs, etc., are answered in a 5-volume set on search and seizure. As a result, there's a lot of irrationality in 4A law, but at least it's easy to decide.

  This kind of law is result-oriented. These cases arise because someone is trying to suppress evidence at trial. So the bias tends to be to try to find a reason to admit the evidence. That 5-volume set is full of decisions, most of which are permissive.

9 April

• Minnesota v. Dickerson
  • Was there reasonable suspicion enough to stop him? He exited a crack house, made eye contact with officers, and left
  • Was there reasonable suspicion that he might be armed? What specific articulable facts that he might be armed? Maybe we think all people in the drug trade might be armed, and maybe not.
  • Once he's determined there's no weapon there, he's no longer lawfully in the guy's pocket.
• One way of understanding 4A rulings: is the police conduct here so disgusting that we'd be willing to forego this prosecution?
• It's the rationale for the search that limits the scope: if you are searching for weapons, you must limit your search to just looking for weapons.
• Note also that the rules that govern the relationship between police and the rest of us are made based on these instances of shady conduct, and motions for evidentiary exclusions. Also, the way the story is told matters: "I was scared there might be a blade in the cigarette pack" vs. "I was conducting a generalized search for weapons and I looked in the cigarette pack."
• "Test-i-lying:" a style of testimony that is developed after-the-fact, when an officer is on the stand in an evidentiary hearing.
• Reasonable suspicion that a crime is afoot vs. probable cause: the latter is a higher standard.
• The caretaking function: a doctrine that allows cops to do some stuff to protect us (i.e., check open doors); they might discover crimes incidentally.
• Bowie: you can conduct a protective search of premises, if you have cause to suspect that someone harmful is there.
• Bostic: how did the court rationalize this search? Well, the cops weren't detaining him, since he was just on the bus. Voluntary no longer means willingly-- it means "not coerced." The case is remanded for a hearing about whether the consent was voluntary.
• The rules here are not self-evident. Technology that enhances your senses (glasses, etc.) are usually OK.
• Drayton: we don't need fully informed consent in order to permit a search. So, following after Bostic, the subject doesn't need to be told that they're free not to consent.
• The constitution isn't intended to contain the right answer in all circumstances.

10 April

• Why do the cops tell the truth? One theory: so they can build up their credibility for when they want to lie.
• Look at the facts. Do they give rise to the suspicion that a crime is afoot? Does it look like the evidence might go away?
• We hire lawyers to solve problems, not create them. If you can provide guidance that accomplishes your client's ends without violating the law, you are worth your salary, and have made the world a better place.
• In order for there to be a stop (a kind of seisure, under Terry), the cops have to insist that you stay. If they don't make you participate in the conversation, it's not a seisure (Hodari).
• Walking away from the cops is not in and of itself grounds for suspicion sufficient to stop someone. Or maybe it does: you need to consider the totality of the circumstances.
• Consider Wardlow: he gets convicted (felon in possession of a firearm). The cops see him standing by a building with an opaque bag. They think Wardlow sees them, and he takes off in the opposite direction.
• Reasonable suspicion isn't necessarily suspicion of a specific crime-- you just have the need to clarify what is going on.
• There are two steps (but they are not exacting): do you have suspicion that there are crimes afoot, and then do you have cause to worry about violence? If yes to the first, you can stop. If yes to the second, you can search.
• But there are tricks: what is a "high crime" area? If you find something, doesn't that vindicate your suspicions?
• What's the difference between a stop and an arrest? Probable cause. You can't arrest someone without probable cause. You can stop them on reasonable suspicion.
• Where does the police power of arrest come from? Citizens don't have the power of arrest. The statutes specify this power (the procedural section). That's what gets triggered in Hiibel: NV statute says you have to ID yourself.
• "Totality of the circumstances" is the magic word. Facts are variable, the cases are result-driven. There's a common law of the exceptions, but it's just a constellation of fact patterns that are either distinguishable or analogous. You can keep debating the finer points forever, but it's pointless.
• How do you know you've been siezed? Because you stopped. Reasonable suspicion is a deferential standard: when would a judge ever say that a cop's suspicion is unreasonable? Especially when the evidence of a crime is right there in the court? If it weren't there, we wouldn't be trying to get it excluded, after all.
• So what basis is there for the seisure in Sitz? Just driving through a checkpoint is not an individualized particular fact giving rise to a reasonable suspicion. Why is this OK? They balance the state's interest in preventing drunken driving against the individual's 4A rights.