Crim Inv

Standard of Proof
Guess, hunch or suspicion: Insufficient basis for official action
Reasonable suspicion: Presence of facts that are articulable and lead a law enforcement officer to suspect criminal wrongdoing. [This level of proof is necessary for a stop and frisk]
Probable cause: Circumstances that are sufficient to convince a reasonable person that a crime has been committed or that evidence of a crime is present. [This level of proof is necessary to justify an arrest, search a vehicle, to obtain an arrest or search warrant, and to bind over an arrested person for trial]
Preponderance of the evidence: A greater weight of evidence on one side than the other (51%) [This level of proof is sufficient for a civil verdict. In California it is also sufficient to overcome the presumption that a defendant is sane]
Clear and convincing evidence: Beyond a preponderance, evidence must be "clear, cogent and convincing" [This level of proof is sufficient to find a person mentally unfit]
Beyond a reasonable doubt Penal Code sec. 1096: "It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge´´. [This level of proof is necessary for a criminal conviction]

California Law

Index and links to California Codes

Crime Discussion in legal encyclopedia

Definition Penal code secs. 15-19
Union of act and intent Penal code secs. 20-22

Types of evidence

Direct evidence Evid. Code Sec. 410 Definition from legal dictionary
Circumstantial evidence Definition from legal dictionary

Presumptions Evid. code secs. 630-647

Hearsay Penal code sec. 1200 Discussion in private law site

Exceptions to the Hearsay rule

Confessions and admissions: Evid. code secs. 1220-1228.1
Statements against interest: Evid. code sec. 1230
Prior inconsistent statements: Evid. code secs. 1235-1238
# Spontaneous statements made under stress or excitement: Evid. code sec. 1240
State of mind - motive, opportunity: Evid. code secs. 1100-1109 1250-1253
* Spontaneous, dying declarations: Evid. code secs. 1240-1242
Unavailable witness (with sufficient cause can use prelim. hearing testimony): Evid. code sec.240
Death of witness, gang/terrorist crimes: Evid. code secs. 1231-1231.4
Death/kidnapping of witness, serious crimes: Evid. code sec. 1350
** Business records: Evid. code secs.1270-1272
Non-opinion published works: Evid. code secs 1340-1341
** Official records: Evid. code secs. 1280-1284

# People v. Rincon (C.A. 2nd, no. B172543, 5/20/05): Shooting victim's (minor injury) comments to third party about circumstances of shooting, made immediately afterwards, are admissible as evidence against the shooter.

* People v. Monterroso (Calif. Supreme Court, No. S034473, 12/13/04): If the declarant thought himself to be dying, or there was substantial medical evidence that his injury was fatal, a delay of eleven days before death does not render a dying declaration inadmissible.

** People v. Ayers (Calif. 5th. Court of Appeal, no. F044982, 1/13/05): Telephone call logs, police and probation reports, psychiatric eval's, etc. are not admissible as business or official records because they contain opinions whose truth cannot be assessed by the person making the record.

Parties to crime Discussion in legal encyclopedia

Principals and accessories Penal code secs. 30-33
Conspiracy Penal code secs. 182-184
Corroboration of accomplices Evid. code sec. 1111

Capacity, intent and defenses

Common defenses Discussion in legal encyclopedia
Mental state Discussion in legal encyclopedia
Age, mental condition Penal code secs. 25-29
Intoxication Penal code sec. 22

Elements of a crime Discussion in legal dictionary

Double Jeopardy Penal code sec. 656

Attempted crimes

Penal code sec. 21a
Penal code secs. 663-664

Privileged communications Online article in private law site

Attorney-client Evidence code sec. 954
Physician-patient Evidence code sec. 993
Psychotherapist-patient Evidence code sec. 1014
Marital communications Evidence code sec. 980
Clergy Evidence code sec. 1034
Waiver by disclosure Evidence code sec. 912
Shield for reporters Evidence code sec. 1070

Arrest process and basis 806-810, 813-829, 833-851.9, 858-883

Definition 834
Resistance, restraint 834a, 835, 835a
Grounds 836

Conduct of trial and burden of proof Penal code secs. 1093-1130

Presumption of innocence (sec. 1096) Penal code secs. 1093-1130
Manner of prosecution Penal code secs. 737-740
Misdemeanor proceedings Penal code secs. 1427-1465
Statute of limitations Penal code secs. 799-805

Admissibility of evidence

Evidence of character or trait generally inadmissible Evidence code sec. 1101
Evidence of motive, opportunity, intent, preparation or plan admissible Evidence code sec. 1101
Evidence of prior sexual offenses or domestic violence admissible Evidence code secs. 1108, 1109
Must offer some evidence of a crime beyond the defendant's admission (People v. Alvarez, 27 Cal.4th 2002)

Witnesses

Impeachment Evid. code secs. 785-791
Impeaching peace officers - disclosing personnel records ("Pitchess" motion)
Penal Code secs. 832.7 and 832.8 Evid. Code secs. 1043-1045
Compelling testimony and granting immunity Penal code secs. 1321-1324
Out-of-State Penal code secs. 1334-1334.6

Constitutional Rights

Index and links to U.S. Constitution

Civil liability for violation of rights (42 USC 1983)

Defendant rights, generally Discussion in legal encyclopedia

4th. Amendment - Search and Seizure Text

Exclusionary rule

U.S. v. Shetler (9th. Circuit, no. 10-50478, 12/28/11): Confession made after illegal search inadmissible when Government does not demonstrate that statements were not produced by the fruits of the search.

Davis v. U.S. (US Supreme Court, no. 09-11328, 6/16/11): The exclusionary rule does not apply when police reasonably comply with established case law that is later overruled. According to the Court the rule is meant to deter Fourth Amendment violations, a purpose that invoking it in such cases would not serve.

Herring v. U.S. (US Supreme Court, no. 07-513, 1/14/09): Evidence yielded by a search incident to an arrest on a recalled warrant (it was mistakenly listed as active on a database) need not be suppressed. Exclusionary rule not meant as a way to deal with ordinary, non-systemic errors.

People v. Hulland (CA 2nd., no. B160371, 2003): No good faith exception to exclusionary rule when officer uses stale information (waits 52 days after purchasing drugs before obtaining a search warrant).

United States v. Leon (US Supreme Court, 486 US 897, 1984): Purpose of exclusionary rule is to deter police misconduct. It does not apply when officers "reasonably" rely, in good faith, on a magistrate´s issuance of a search warrant, even if it later turns out that the warrant was issued on insufficient grounds.

Weeks v. United States (US Supreme Court, 232 US 383, 1914): Federal government cannot use evidence gathered in violation of the U.S. Constitution against a criminal defendant.

Admissibility in State Courts

Mapp v. Ohio (US Supreme Court, 367 US 643, 1961): Evidence obtained in violation of US Constitution is also inadmissible in State courts.

6th. Amendment - Rights of defendants Text

Bullcoming v. New Mexico (Sup. Ct., no. 09-10876, 6/23/11): Defendants have the right to demand that the analyst who actually tested a forensic sample testify as to the results. (See Crawford, below.)

Michigan v. Bryant (Sup. Ct., no. 09-150, 2/28/11): The Supreme Court upheld the admissibility of a dying declaration by a victim who was shot, ruling that in determining whether a statement is excludable as hearsay courts must objectively evaluate whether it was made for the purpose of gathering evidence or in response to a bonafide "ongoing emergency."

Holley v. Yarborough (9th. Cir., no. 08-15104, 6/16/09): Violation of confrontation clause to deny a defendant the right to cross-examine and present evidence to impeach a child when his/her truthfulness is key to the prosecution's case.

Montejo v. Louisiana (U.S. Sup. Ct., no. 07–1529, 5/26/09: As there is "no reason categorically to distinguish an unrepresented defendant from a represented one," the Court ruled that police may question persons represented by counsel if statements are knowing and voluntary and comply with Miranda.

Kansas v. Ventris (U.S. Sup. Ct., no. 07–1356, 4/29/09): Statements gathered by jailhouse informer in violation of Sixth Amendment's right to counsel can be used for impeachment.

Giles v. California (U.S. Sup. Ct., no. 07-6053, 6/25/08): Unless the actual purpose of a killing is to keep someone from testifying, what a deceased person once said cannot be introduced against a defendant, even if the defendant caused their death. "Forfeiture by wrongdoing" is not an exception to the Sixth Amendment confrontation requirement."

Bockting v. Bayer (9th. Cir., no. 02-15866, 10/12/07: Child victim's statements of sex abuse made during a prelim. hearing can be used at trial if under "totality of circumstances" they are sufficiently trustworthy and child is too upset to testify.

Davis v. Washington (US Sup. Ct., nos. 05-5224 and 05-5705, 6/19/06): 911 recording of a person asking for help is not testimonial and can be admitted without having the caller available for cross-examination (i.e., Crawford, below, does not apply). Police interview once an emergency has passed is testimonial and Crawford applies.

Fowler v. Sacramento (U.S. Sup. Ct, no. 04-15885, 8/31/05): Defendant accused of molestation has the Constitutional right to cross-examine the accuser about prior allegations of molestation that the accuser made against others, for the purpose of discrediting the accuser's testimony.

People v. Castille (C.A. 1st Ct. of Appeal, no. A089623, 5/25/05): Statements made jointly, as when suspects participate in a joint interrogation, are admissible against all, excepting something that is clearly repudiated.

People v. Combs (Calif. Supreme Court, 34 Cal.4th 821, 2004): Statements of defendants can be introduced against each other when they jointly admit guilt ("adoptive admission"), as when they re-enact a crime for police or confirm the correctness of another's statement.

People v. Song (Calif. Court of Appeal, 3rd., no. C042456, 12/2/04): Introducing at trial a statement made by a defendant to police that implicates a co-defendant violates the co-defendant's right to cross-examine witnesses (see Bruton, below).

People v. Lee (Calif. Court of Appeal, 4th., no. B166204, 11/29/04): Cannot introduce taped interview of witnesses at trial without producing them for cross-examination.

People v. Caudillo, Calif. Court of Appeal, no. H026166 (10/7/04): Spontaneous statements made by anonymous 9-1-1 caller who allegedly witnessed a crime are not hearsay and are admissible as a spontaneous, excited utterance under Calif. Evidence code sec. 1240.

Randolph v. California (9th Cir., no. 03-16064, 8/19/04): Deliberately placing an informer in a jail cell to elicit an incriminating statement violates an accused person's right to counsel.

Crawford v. Washington (US Sup. Ct., no. 02-9410, 3/8/2004): Right to confront one´s accuser was violated by admitting a spouse´s written statement into evidence without making the spouse available for cross-examination. (The accused asserted his marital privilege). When witnesses are unavailable to testify, their prior statements cannot be admitted unless there was an opportunity for cross-examination (e.g., as in a preliminary hearing).

Fellers v. U.S. (US Sup. Ct., no. 02-6320, 1/26/04). Police questioning of someone who has been indicted by a Grand Jury violates the Sixth Amendment´s right to counsel.

Bruton v. United States (US Sup. Ct., 391 US 123, 1968): Cannot introduce confession of co-defendant, even if it is a joint trial and the jury is warned to disregard it.

Massiah v. United States (US Sup. Ct., 377 U.S. 201, 1964): Cannot surreptitiously obtain incriminating comments from an indicted defendant as to acts for which he is already entitled to counsel.

Gideon V. Wainwright (US Sup. Ct., 372 US 335, 1963): Indigent defendants are entitled to a court-appointed attorney if charges could lead to imprisonment.

14th. Amendment - Due Process of Law Text

Perry v. New Hampshire (no. 10-8974, 1/11/12): Perry was picked out from a distance by an eyewitness as he stood detained at the scene of car burglaries. Police, said the Supreme Court, did not try to influence the witness, so Perry's identification was properly admitted as evidence at trial, where jurors could make up their own minds.

Smith v. Cain (no. 10-8145, 1/10/12): An eyewitness to a home invasion testified that Juan Smith shot and killed the victim. Based on that alone Smith was convicted of murder. But it turned out that prosecutors withheld statements by Smith that he wouldn't be able to ID the shooter. The Supreme Court ruled this a Brady violation and overturned the conviction.

Doody v. Schriro (9th. Cir., no. 06-17161, 2/25/10): Relentless overnight questioning of a teen violates due process; obfuscating Miranda with an extensive "explanation" also violates Miranda. Reaffirmed 5/4/11.

U.S. v. Price (9th. Cir., no. 05-30323, 5/21/09): Failure to disclose a witness's misdemeanor arrests for shoplifting and fraudulently using vehicle license tags is a Brady violation as these acts involve deception and can be grounds to impeach her truth and veracity.

Doody v. Schriro (9th. Cir., no. 06-17161, 11/20/08): Relentless twelve-hour, overnight interrogation of a 17-year old by tag-teams of officers where parents were not present, Miranda warnings were given but "downplayed," and questioning turned "menacing" and "coercive" was a Due Process violation.

Jackson v. Brown (9th. Circuit, nos. 04-99006 and 04-99007, 1/23/2008): Failure to disclose promises to jailhouse informers (recommend change of prison for one, sentence reduction for another) and to correct their untruthful testimony in that regard, which was offered to prove "special circumstances," are Brady violations and require setting aside the death penalty that was imposed.

United States v. Jernigan (9th. Circuit, no. 05-10086, 7/09/2007): See Brady, below. It is a due process violation to withhold potentially exculpatory information from an accused. A woman convicted of bank robbery was not told that another woman of similar description was arrested for committing bank robberies during the same period in the same area.

Silva v. Brown (9th Cir., no. 04-99000, 7/26/05): Violation of Brady for prosecution to conceal that its star witness had a serious psychiatric problem and agreed not to be examined until after the trial.

Juan v. Allen (9th. Circuit, no. 04-15562, 6/2/05): When there is no evidence that someone actually assisted in the planning or commission of a crime, merely knowing about the crime in advance or being present at the scene is not proof beyond a reasonable doubt of aiding and abetting. Conjecture is not enough.

Horton v. Mayle (9th. Cir., no. 03-56618, 5/10/05): Failure to disclose that witness was granted immunity violates Brady.

U.S. v. Beck (9th. Circuit, no. 03-30470, 1/5/05): A six-person photospread of Caucasian males with similar hair, skin and eye color, all wearing glasses, is not unduly suggestive. Showing witnesses the surveillance photo of the actual bank robber then asking whether he is one of the persons depicted in the photospread is also permissible, since this WAS the robber, so all it could do is to accurately refresh one's recollections.

United States v. Blanco (9th Cir., no. 03-10390, 12/27/04): Failure to disclose that informant received special benefit from Government violates Brady.

Gantt v. Roe (9th Cir., no. 99-55477, 11/22/04): Failure to disclose possibly exculpatory evidence to the defense (witness not produced in Court told police he did not recognize the defendant from a photograph) violates Brady.

United States v. Mitchell (9th Circuit, no. 96-10411, 3/26/99): Proof of indebtedness or of lack of money cannot be used in a prosecution to prove motive to commit a crime: "lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value."

Banks v. Dretke, US Sup. Ct., no. 02-0286, 2/24/04: Must disclose that a witness was a paid informant, that witnesses were extensively coached, and that witnesses lied during trial.

People v. Martinez (Calif. Court of Appeal, 4th. Circuit, no. G024042, 11/22/02): Must disclose that prosecution witness had three prior felony convictions (all expunged) and was facing present charges of spousal abuse.

Manson v. Brathwaite, US Sup. Ct., 432 US 98 (1977): Factors in reliability of witness ID: (a) witness's opportunity to view the defendant at the time of the crime, (b) the witness's degree of attention at the time of the crime, (c) the accuracy of the witness's prior description, (d) the witness's level of certainty at the line-up, and (e) the length of time between the crime and the line-up.

Neil V. Biggers, US Sup. Ct., 409 US 188 (1972): Even if the police use a suggestive procedure, one must look to the "totality of the circumstances" to determine if a witness identification is sufficintly reliable to be admitted. Factors to consider include: 1. opportunity of the witness to view the criminal at the time of the crime 2. Witness' degree of attention 3. Accuracy of the witness' prior description of the criminal 4. Level of certainty demonstrated by the witness at the confrontation 5. Length of time between the crime and the confrontation.

Haynes v. Washington, US Sup. Ct., 373 U.S. 503, 513 (1963): Interrogation becomes "coercive" and illegal under the due process clause of the 14th. Amendment when the "totality of the circumstances shows that the officer's tactics undermined the suspect's ability to exercise his free will."

Brady v. Maryland, US Sup. Ct., 373 US 83 (1963): Prosecution must disclose potentially exculpatory evidence to defense, including grounds for impeachment of its witnesses.

Arrest, search and seizure

California Law

Search warrants Penal Code secs. 1523-1542
Subpoenas - persons and records Penal code secs. 1326-1332

Public and Private Records

Secondary evidence rule Evid. code secs. 1521-1523
Official documents Evid. code secs. 1530-1532

People v. Martinez, Calif. Supreme Court, No. S062266 (Jan. 10, 2000): Uncertified computer printouts, reporting criminal history information, are admissible as evidence of prior felony convictions under the official records exceptionto the hearsay rule.

Photocopies Evid. code secs. 1550-1553

4th. Amendment - Search and Seizure Text

Arrests

John v. Youngquist (9th. Circ., no. 05-56125, 9/27/07): Probable cause to arrest is based on totality of circumstances. An officer correctly arrested a teacher for sexually molesting a student based on the student's detailed description of what happened, the officer's special training on questioning juvenile victims of sexual abuse, and the fact that the student had written a note to a classmate accusing the teacher.

Devenpeck v. Alford (Supreme Court, no. 03-710, 12/13/04): As long as there is probable cause to arrest for an offense, there is no Constitutional violation if officers incorrectly arrest for a completely different offense for which probable cause does not exist.

Maryland v. Pringle (Supreme Court, no. 01-809, 12/15/03): After spotting a large amount of cash in a car´s glovebox, an officer searched and discovered a bag of cocaine behind the rear seat armrest. The officer arrested every occupant on drug charges. The Court unanimously said that this was legal, as based on the totality of the circumstances it was reasonable to infer that each occupant was in constructive possession of cocaine.

U.S. v. Vaneaton (9th. Cir., 49 F.3d 1423, 1995): A person who opens the door and stands on the threshold of their residence is in a "public place" and may be arrested without a warrant.

Payton v. New York (Supreme Court, 445 US 573, 1980): Absent exigent circumstances, police cannot enter a home without a warrant or consent to make a "routine" felony arrest. However, they can enter with an arrest warrant for the limited purpose of making an arrest when there is reason to believe the suspect is present.

Searches generally

Missouri v. McNeely (US Sup. Ct., no. 11-1425, 4/17/13): Officers need search warrant to force collection of blood sample in DUI cases; mere fact that BAC dissipates over time not enough of an exigency to allow warrantless collection.

Florida v. Jardines (US Sup. Ct., no. 11-564, 3/26/13): Officers who lack a search warrant cannot breach curtilage - in this case, walk up to a home's front porch - to deploy a drug-sniffing dog.

U.S. v. Comprehensive Drug Testing (9th. Cir., no. 05-10067, 9/13/10). When computerized datasets are seized, special precautions must be taken to insure the privacy of files that lie outside the scope of the warrant so that the "plain view" doctrine doesn't become moot.

U.S. v. Borowy (9th. Circ., no. 09-10064, 2/17/10): No expectation of privacy for users of file-sharing programs that make contents of their computer available to the public. (An FBI agent downloaded child pornography from the appellant's computer.)

U.S. v. Ricardo Fraire (9th. Cir., no. 08-10448, 8/4/09): Checkpoint at entrance to National Park to catch and deter poachers is reasonable because (1) it's not a general crime control device (2) it advances the public interest and (3) the subjective intrusion is minimal, as it's at the park entrance and delay is slight.

Friedman v. Boucher (9th. Cir., no. 05-15675, 6/23/09): Absent a search warrant, forcibly intruding into the body (in this case, the mouth) to take a DNA sample from a pretrial detainee violates the Fourth Amendment.

MacWade v. Kelley (2nd. Cir., no. 05-6754-civ, 8/11/06): Random searches of bags in NY City subway meets the "special needs" exception to the Fourth Amendment and are on balance reasonable. (Note: persons can refuse to grant consent but must leave.)

U.S. v. Ziegler (9th Cir., no. 05-30177, 8/8/06): No expectation of privacy in workplace computers subject to company control and where personal use is forbidden.

People v. Rege (Calif. Court of Appeal, 4th, no. E036180, 7/18/05): Search incident to arrest doctrine allows the warrantless search of an area within an arrested person's reach, even after they are in custody.

U.S. v. Fay (9th. Cir., no. 04-10401, 6/3/05): A homeowner's roommate has no reasonable expectation of privacy as to the contents of an open duffle bag kept in a shared laundry room.

U.S. v. Caymen (9th. Cir., no 03-30365, 4/21/05): No reasonable expectation of privacy as to the contents of a computer fraudulently obtained from a store.

U.S. v. Washington (9th Cir., no. 02-10526, 11/2/04): Detention without probable cause by multiple armed officers and their coercive pressure rendered invalid a suspect's "consent to search" and made everything found inadmissible.

U.S. v. Cunag (9th. Cir., no. 03-50067, 6/14/04): No reasonable expectation of privacy in a motel room obtained with a stolen credit card after suspect was locked out and manager called police.

U.S. v. Barajas-Avalos (9th. Cir., no. 02-30301, 3/10/2004): Entering an open field without a search warrant and looking into an empty structure that is used occasionally as sleeping quarters by hired hands does not violate the "curtilage" of a residence.

Kyllo v. U.S. (Supreme Court, no. 99-8508, 6/11/01). Thermal imaging of a garage to detect excessive heat output by marijuana "grow lights" is a search within the meaning of the 4th. Amendment, since the Government is "using a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion".

Ferguson v. Charleston (Supreme Court, no. 99-936, 3/21/01). It is an unreasonable search (violation of 4th. amendment) for a hospital to perform a non-consensual drug test so as to identify drug users and coerce them into treatment.

USA v. Oaxaca, (9th. Circuit, no. 99-30062, 2000). Police cannot intrude into a home (or a garage) unless they have consent or a warrant, even if they seek a person who is clearly visible.

Bond v. U.S., (Supreme Court, no. 98-9349, 2000): Immigration checks do not permit Border Patrol officers to squeeze a bag do determine its contents.

United States v. Sandoval, (9th. Circuit, no. 98-30130, 2000): Reasonableness of a search depends on whether defendant had a reasonable expectation of privacy. Warrantless search of a closed tent on Federal land illegal.

Flippo v. West Virginia, (Supreme Court, no. 98-8770, 1999), based on Mincey v. Arizona, 437 US 385 (1978): There is no "murder scene" exception to the search warrant requirement. N.Y. Times article

Wilson v. Layne (Supreme Court, no. 98-83, 1999): Media ride-alongs violate the 4th. amendment. Summary

Nix v. Williams (Supreme Court, 467 US 431, 6/11/84): Fruits of an otherwise impermissible search are admissible if their discovery was inevitable.

Rakas v. Illinois (Supreme Court, no. 77-5781, 1978): Rights under the Fourth Amendment are personal and cannot be "vicariously asserted". A person cannot object to the introduction of evidence obtained through an illegal search of another person's premises or property.

U.S. v. Davis (9th. Cir., 482 F.2d 893, 1973): Airport screenings of passenger and baggage are permissible "administrative" searches if three requirements are met: (1) no more intensive than technically necessary to detect weapons or explosives; (2) confined in good faith to that purpose; (3) passengers can avoid the search by electing not to fly.

Chimel v. California (Supreme Court, 395 U.S. 752, 1969): Search incident to arrest extends to entire area where person arrested could have reached for a weapon or destroyed evidence.

Consent searches

U.S. v. Monghur (9th. Cir., no. 08-10351, 8/11/09): Suspect's waiver of privacy as to a container in his room must be unequivocal to allow other residents to consent to its search. However, whether or not suppression is the proper remedy must be evaluated under Herring.

Georgia v. Randolph (US Sup. Ct., no 04-1067, 3/22/06): Consent to search given by one occupant of a residence invalid when a co-occupant with an equal claim to the area to be searched denies permission.

U.S. v. Ruiz (9th Cir., no. 04-30516, 11/7/05: When an officer reasonably believes that an occupant of a residence has control over a container, and that person gives consent for its search, the contents are admissible even if the container was someone else's and the person who gave consent was not authorized to do so.

U. S. v. Drayton (Supreme Court, no. 01-631, 6/17/02): If a person freely consents to a search (officer asks for permission, they say "yes"), and the circumstances are that a reasonable person would understand that they could say "no", officers do not have to advise the person they are free to come and go and that they can refuse to grant permission for the search.

U. S. v. Davis (9th Cir., no. 01-10739, 6/11/03): Owner of residence cannot consent to the search of a closed personal container (e.g., zippered gym bag) belonging to an overnight guest, who would have the reasonable expectation that the contents of a closed personal container would remain private.

Use of Force

Mattos v. Agarano (9th. Circuit, no. 08-15567, 1/12/10): Officer trying to arrest a man for domestic violence entitled to qualified immunity for using the Taser in close quarters against the man's wife when they bumped and she touched him, although not aggressively.

Bryan v. McPherson (9th. Circuit, no. 08-55622, 12/28/09): Tasers are an "intermediate" level of force and using them on a subject who does not present a threat to an officer is clearly excessive.

Miller v. Clark County (9th. Circuit, no. 02-35558, 8/21/2003): A wanted felon known to be a threat to police was tracked down and severely bitten by a police dog. This seizure was not "deadly force" and considering the "totality of the circumstances" it did not violate the 4th. Amendment.

Warrantless entry: exigent circumstances and "protective sweeps"

Kentucky v. King (no. 09-1272, 5/16/11): Officers smelled marijuana, knocked, heard suspicious noises, then entered without a warrant. The Supreme Court approved, ruling that as long as they don't purposely try to precipitate destruction, police may enter a residence if they suspect evidence is being destroyed.

U.S. v. Struckman (no. 08-30463, 5/4/10): Lacking exigent circumstances, a belief that someone is trespassing is insufficient to invade the curtilage of a residence (small, fenced-in yard) and seize the alleged trespasser, especially when a simple inquiry would have resolved the matter.

U.S. v. Lemus (no. 08-50403, 9/22/09): Post-arrest protective sweep allowed if (1) area searched immediately adjoins area of arrest; and (2) area searched is one from which an attack could be immediately launched. Gun observed sticking out from under couch during sweep allowed as evidence.

Hopkins v. Bonvicino (no. 07-15102, 7/16/09): Constitutional violation for officers to enter a residence without a warrant to detain a person whom a citizen had accused of driving drunk and causing an accident.

US v. Black (9th. Cir., no. 05-10640, 4/10/07): Strong likelihood that 9-1-1 caller who said she was just beaten may be inside a residence is sufficient for police to make entry without a warrant to check on her welfare.

U.S. v. Arellano-Ochoa (9th Cir., no. 04-16449, 8/31/06): A suspected lawbreaker who dodges behind a door and commits other evasive acts poses a threat to officers that amounts to exigent circumstances and justifies a warrantless entry.

People v. Thompson (Calif. Sup. Court, no. 03-56712, 6/1/06): Police may enter a home to arrest a DUI suspect without a warrant if blood alcohol evidence is at imminent risk of being dissipated.

Brigham City, Utah v. Stuart (no. 05-502, 5/22/06): Police may enter a home without a warrant when they have "an objectively reasonable basis" for believing that someone is imminently threatened with a serious injury - they need not wait until a serious injury occurs.

U.S. v. Russell (9th Cir., no. 04-10681, 1/30/06): Warrantless entry to sweep for possible victims or assailants justified by a confusing 9-1-1 call about an accidental shooting.

U.S. v. Stafford (9th Cir., no. 04-30134, 8/3/05): Reported presence of an apparently dead body, smeared blood and feces in an apartment supports a warrantless entry per Cervantes (see below), and objects seen as officers looked around are admissible.

U.S. v. Martinez (9th Cir., no. 04-30098, 5/16/05): Police summoned by a 9-1-1 domestic call found a distraught woman outside and heard an angry man yelling from the inside. Their warrantless entry was justified by the need to protect themselves and others against possible violence, and anything found in plain view would be admissible.

People v. Celis (Calif. Sup. Court, no. S107885, 7/26/04): Warrantless entry into a residence to search or arrest requires exigent circumstances, based on probable cause. Warrantless entry as a "protective sweep" requires reasonable suspicion that the premises "harbor a dangerous person."

U.S. v. Brooks (9th. Circuit, no. 02-50539, 5/13/04): 911 call of woman being beaten in a motel room. When officers arrived they heard scuffling and a woman crying. They entered without a warrant and consequently discovered evidence of a bank robbery. Their entry was held proper and the evidence was admissible (a statement made without Miranda was suppressed.)

U.S. v. Bradley (9th. Circuit, no. 02-10168, 3/11/03): Permissible to enter a residence without a warrant out of genuine concern for a child´s welfare, then obtain a search warrant when officers spot stolen property .

Kirk v. Louisiana (Supreme Court, no. 01-8419, 6/24/02): It is unconstitutional to enter a private residence to arrest someone without a search warrant or "exigent circumstances."

U.S. v. Alaimalo (9th. Circuit, 313 F.3d 1188, 2002): Officers can enter a residence without a warrant for the purpose of securing the premises, if there is probable cause it contains evidence that will otherwise be destroyed.

U.S. v. Cervantes (9th. Circuit, 219 F.3d. 882, 2000): Under their "community caretaking function", police may in an emergency enter a residence without a warrant, if the entry is motivated by a reasonable belief that life or property are at risk, the entry is not primarily for the reason of seizing evidence, and there is something "approximating probable cause" that the area entered is connected with the emergency.

Maryland v. Buie (Supreme Court, no. 88-1369, 2/28/90): Officers making an "in-home" arrest can make a limited protective sweep if there are articulable facts that a person posing a danger is present.

Vehicle stops; stop and frisk; identification

U.S. v. Smith (9th. Cir., no. 10-10036, 2/3/11): Unprovoked flight from a police officer in a high-crime neighborhood established reasonable suspicion for a stop and for a search for weapons.

U.S. v. Burkett (9th. Cir., No. 09-30260, 7/20/10): During a lawful traffic stop by a highly experienced officer, a passenger's "erratic behavior, evasive and deceptive responses, and peculiar movement" justified a pat-down.

Arizona v. Johnson (Supreme Court, no. 07-1122, 1/26/09): The passengers of a vehicle lawfully stopped for a traffic violation are also temporarily "seized" and may also be asked to step out of a vehicle to be frisked if there is reasonable belief they might be armed and dangerous.

U.S. v. Washington (9th. Cir., no. 06-30386, 6/19/07): Officers' actions can turn a consensual encounter into an unconstitutional "seizure" of a person, and anything then found is inadmissible. In this case a citizen who gave consent for a pat down was effectively prevented from leaving. He then gave consent for a vehicle search, and a gun was found.

Brendlin v. California (Supreme Court, no. 06-8120, 6/18/07): In a traffic stop passengers are "seized" and may challenge the stop's constitutionality.

U.S. v. Orman (9th. Cir., no. 06-10398, 5/22/07): Tip from a worker who saw someone conceal a handgun on their person before entering a mall justifies a "stop and frisk" even when State law allows citizens to obtain CCW permits.

U.S. v. Flatter (9th. Cir., no. 04-30337, 8/9/06): Fear that an interview might turn confrontational does not constitute "reasonable suspicion" for a stop-and-risk.

U.S.v. Miranda-Guerena (9th Cir., no. 05-10198, 4/25/06: Officer may stop a vehicle on reasonable suspicion that a traffic violation was committed. This "suspicion" may consist solely of a credible report from a third party.

U.S. v. Garcia-Beltran (9th. Cir., no. 05-30434, 4/6/06): Fingerprints taken after an illegal arrest are not admissible if taken solely for investigation, but are admissible for the purpose of identification.

U.S. v. Willis (9th. Cir., no. 04-10079, 12/19/05): Traffic violation in a high-crime area, then after stop driver's evasive movements and hands in pockets are "reasonable suspicion", justifying asking motorist if he "has anything to hide", then taking away (and using as evidence) a gun the person admitted they were carrying.

People v. Rodgers (C.A. 4th., no. E034205, 8/19/05): Anonymous 9-1-1 call that a man just threatened a woman's life, together with officer observations that a man and woman were in a car as described, was sufficient cause for stopping the vehicle and temporarily detaining its occupants.

U.S. v. Williams (9th Cir., no. 04-10213, 8/16/05): During a traffic stop an officer may order an occupant back inside a vehicle for reasons of the officer's safety. Gun that a passenger then threw out is admissible.

Lowry v. Gutierrez (C.A. 2nd, no. B177605, 5/26/05: Given the threat of drunk drivers and the minimal nature of the intrusion, an anonymous tip that a motorist was driving in a particularly recklessly fashion was sufficient cause for a traffic stop.

In re Lennies H. (C.A. 1st., no. A10610, 2/18/05): If there is reason for a pat-down, an officer who feels an object that is "immediately apparent" as evidence can remove the item (in this case, a set of keys for a carjacked auto.)

People v. Lamont (C.A. 4th., no. G032369, 12/28/004): Passenger of a vehicle has standing to object to a stop.

People v. Durazo (C.A. 6th., no. B173901, 12/2/04): Stopping a vehicle requires more than a "hunch" - there must be "articulable facts giving rise to a reasonable suspicion that the driver or a passenger has violated the Vehicle Code or some other law".

People v. Jordan (C.A. 5th., no. F043779, 8/10/04): Uncorroborated anonymous tip is by itself insufficient to justify a stop and frisk.

U.S. v. Del Toro Gudino (9th Cir., no. 03-30023, 7/22/04): Defendant's identity cannot be suppressed no matter how obtained.

Hiibel v. Sixth Judicial District (US Sup. Ct., no. 03-5554, 6/21/04): Law is permissible that authorizes the arrest of a person who refuses to give their name when there is "reasonable suspicion" of criminal activity. No ruling on whether a person must show ID, as it was not part of the law.

People v. Nabong (CA Super. Ct., App. Div., 2/24/04): Officers cannot stop a car for expired registration simply based on their prior observation that temporary window stickers are often misused, since doing so would arbitrarily subject persons complying with the law to detention.

US v. Ariel Terry-Crespo (9th. Cir., no. 03-30085, 1/29/04). 9-1-1 call by a non-anonymous crime victim (he/she identified themselves) is sufficient basis for a Terry stop.

United States v. Christian (9th. Cir., no. 02-30185, 1/28/04): Under the Terry doctrine officers can, depending on the circumstances, demand identification, then continue detaining a person who seems to be misidentifying himself (which is a crime).

Haynie v. County of Los Angeles (9th. Cir., no. 01-55731, 8/12/03): Officer stopped a van matching description of vehicle occupied by armed persons. Van did not immediately yield and driver was uncooperative. Driver was handcuffed and placed in police car for up to 20 mis. while officer searched van. Driver was then released. Detention found to be justified and not an arrest. Brief restriction of liberty is not necessarily an arrest. And as long as an officer acts diligently there are no strict limits on the duration of the restriction.

People v. Medina (Calif. 2nd. Court of Appeal, no. B159372, 7/7/2003): Regardless whether doing so is considered "standard procedure" or has as its purpose "officer safety", stopping a vehicle for an equipment violation in a high gang-crime area does not by itself justify a frisk and remporary detention, and any evidence that is consequently seized is inadmissible.

Gallegos v. City of Los Angeles (9th. Cir., no. 01-56021, 10/11/02): A person mistakenly believed to be a burglar was detained for about one hour. During this period he was handcuffed and driven to the scene of the crime for a "showup". The court ruled that under the totality of the circumstances this was a permissible Terry stop, that there is "no bright line rule for determining when an investigatory stop crosses the line and becomes an arrest".

US v. Arvizu (US Supreme Court, 00-1519, 1/15/02): The "particularized and objective basis" for making an investigative stop comes from an officer's inferences and deductions, drawn from his experiences and training, which as a whole may form a reasonable suspicion of criminal wrongdoing. Courts must evaluate an officer's acts based on the "totality of the circumstances", not just on certain aspects of a situation that, when seen in isolation, can be explained away as innocent acts by the accused person.

US v. Summers (9th. Circuit, no. 00-30083, 10/12/01): Carrying a box away from a closed Goodwill store at 10:00 pm creates a reasonable suspicion that a crime has or will occur, so an investigative stop is permissible.

US v. Chavez-Valenzuela (9th. Circuit, no. 00-50075, 10/15/01): Extreme nervousness does not justify the continued detention of a motorist after the immediate purpose of a traffic violation stop is accomplished. Anything discovered thereafter, even if a driver freely consents to a search, is inadmissible as fruit of the poisoned tree.

US v. Miles (9th. Circuit, no. 00-30035, 4/26/2001). Officer's pat-down under Terry became illegal when he shook a small container that could not have held a weapon. (Officer heard a rattling sound, opened the container and found ammunition.)

US v. Montero-Camargo (9th. Circuit, nos. 97-50643, 50645, 2000). Border Patrol officers cannot consider Hispanic ethnicity when making a stop because such appearance no longer demographically supports a "particularized reasonable suspicion" that a person may be in violation of immigration law.

Florida v. J.L.,US Sup. Ct., no. 98-1993 (2000): An anonymous, uncorroborated tip is by itself insufficient under the Terry doctrine to frisk someone for weapons.

Illinois v. Wardlow, US Sup. Ct., no. 98-1036 (2000): Based on Terry. OK to stop and frisk fleeing person in a known drug-sales area. Police Training Institute discussion.

Minnesota v. Dickerson, US Sup.Ct., 508 US 366 (1993): Terry permits briefly detaining someone whose suspicious conduct suggests criminal activity, and a pat-down for weapons if the person seems to be armed. But this pat-down cannot be extended to searching, crushing or manipulating baggies or other containers that cannot contain a weapon.

Kolender v. Lawson, 658 F.2d 1362 (9th. Circuit, 1981): Officers cannot compel persons stopped for investigation to identify themselves

Terry v. Ohio, US Sup. Ct., 392 U.S. 1 (1968): Can stop a person if there is reasonable suspicion, based on articulable facts, that they have just committed or are about to commit a crime. Person can be frisked for something that can be used as a weapon if there is the same level of belief that they may be armed. Discussion

Vehicle searches

Florida v. Harris (US Sup Ct., no. 11-817, 2/29/13): Absent proven deficiencies in training and certification, alert by a trained and certified drug detection canine is by itself sufficient probable cause to justify a search.

U.S. v. Maddox (9th. Cir., no. 09-30284, 8/12/10): Lacking in the court's view a legitimate reason to return to the vehicle of a person in custody and inspect a key chain that was left behind, what the officer found (a vial of drugs) was inadmissible and could not be used to justify a further search. (Note: 2-1 decision, strong dissent. This case is clearly an outlier.)

U.S. v. Ruckes (9th. Cir., no. 08-30088, 11/9/09): Fruits of a vehicle search that lacked probable cause were admissible under the Nix v. Williams "inevitable discovery" doctrine because the vehicle was to be impounded and inventoried.

Arizona v. Gant (US Sup. Ct., no. 07-542, 4/21/09): Incident to arrest, police may search passenger compartment of a vehicle if (a) arrestee might access the vehicle during the search, or (b) officers reasonably believe that it contains evidence of the crime underlying the arrest. Cannot search if offense is driving with a suspended license, as no "evidence" of that crime is likely to be found.

U.S. v. Delgado (9th. Cir., no. 07-50238, 10/7/08): Commercial trucks are subject to warrantless regulatory inspections as a trucking is a "pervasively regulated industry" and the government inspection program substitutes for a warrant.

U.S. v. Caseres (9th. Cir., no. 06-50546, 7/21/08): Searching a parked car a considerable time after arresting its driver 150 feet away for threatening an officer does not qualify as a search incident to arrest.

U.S. v. Thomas (9th. Cir., no. 04-30541, 5/18/06): Unauthorized driver of a vehicle does not have a legitimate expectation of privacy in its contents and does not have the standing to challenge the Constitutionality of its search.

U.S. v. Weaver (9th. Cir., no. 04-50608, 1/10/06): A 10-15 minute delay does not invalidate the search of a vehicle incident to arrest.

People v. Dolly, C.A. 2nd, no. B169971 (5/4/2005): Taped 9-1-1 complaint that a specifically described suspect in a specific vehicle just pulled a gun on the caller justifies stop of vehicle and its search for a weapon.

U.S. v. Pulliam , 9th Cir., no. 03-50550 (4/21/05): A person who does not have a possessory interest in a vehicle cannot object to its illegal search, and items found in the vehicle can be used against him as evidence.

Illinois v. Caballes, US Sup Ct., no. 03-923 (1/24/05): There is no legitimate property interest in contraband. Permissible to walk a drug-sniffing dog around a vehicle that was lawfully stopped for a traffic infraction. (The dog alerted, giving probable cause, and a search discovered drugs.)

United States v. Mayo, 9th Cir., no. 04-10076 (1/14/05): Entire passenger compartment of a vehicle may be searched incident to an arrest, including the hatchback area.

Thornton v. U.S., US Sup. Ct., no. 03-5165 (5/24/2004): Search of a vehicle incident to arrest may be for evidence that relates to the reason for the arrest. Authority extends to the passenger compartment of a vehicle, regardless of whether an occupant was arrested inside or outside.

Illinois v. Lidster, US Sup. Ct., no. 02-1060 (1/13/04): Highway checkpoint to gather information from citizens - not to gather evidence against them - is permissible. If it happens to lead to discovery of a crime, the evidence can be used in court. (Contrast to Indianapolis v. Edmond, below).

United States v. Ibarra, 9th Circuit, no. 02-30389 (9/26/2003): If there is legal cause to stop a vehicle, anything legally discovered as result of the stop is admissible, even if the reason for the stop was only a pretext to investigate further (see Whren v. US, below).

USA v. Pinela-Hernandez, 9th. Circuit, no. 00-50371 (08/28/01): Under the Carroll doctrine police may conduct a warrantless search of any part of a vehicle, including closed packages in the trunk, if they have probable cause to believe that the vehicle may contain contraband. "Probable cause" to search means "a fair probability that contraband or evidence of a crime will be found in a particular place."

USA v. Morales, 9th. Circuit, no. 00-30191 (6/7/01.) When the reliability of a "tipster" is unclear, such as in an anoymous tip, authorities need to corroborate something said by the tipster that is relevant to the matter at hand.

Arkansas v. Sullivan , US Sup. Ct., no. 00-262 (5/29/01). As long as there is legal support for conducting a search, an officer´s "subjective" motivation is irrelevant. In this case, officers made an arrest for a minor offense, conducted an inventory search and found drugs.

U.S. v. King, 9th. Circuit, no. 00-30113 (03/28/01): Officer decision based on a mistake of law cannot be the basis for a traffic stop, and all evidence found as result must be suppressed.

Indianapolis v. Edmond, US Sup. Ct., no. 99-1030 (2000): Vehicle checkpoints to interdict drugs are unlawful. Unlike DUI "highway safety" or border checkpoints, the purpose of drug checkpoints is to detect ordinary crime, which is subject to the "individualized suspicion" requirements of the Fourth Amendment.

USA v. Twilley, 9th. Circuit, no. 99-50338 (2000): Passenger in vehicle stopped by police can contest stop under Fruit of Poisoned Tree doctrine. Even when an officer uses good faith, their "mistaken understanding of the law" cannot form the "reasonable suspicion" necessary for a stop.

Florida v. White, US Sup. Ct., no. 98-223 (1999): If vehicle is forfeitable contraband no search warrant required to search it or seize it. Summary

Wyoming v. Houghton.US Sup. Ct., no. 98-184 (1999): If there is probable cause to believe that a vehicle contains contraband, OK to search passengers´ belongings. Summary

Knowles v. Iowa, US Sup. Ct., no. 97-7597 (1998): Cannot search a vehicle simply because the driver has committed a traffic offense. Summary

Whren v. United States (US Sup. Ct., 517 U.S. 806, 1996). If there is legal basis to stop a vehicle, anything an officer legally discovers is admissible, even if the stop was only a pretext for further investigation.

New York v. Belton (US Sup. Ct., 453 U.S. 454, 1981): Entire passenger area of a vehicle and all containers therein may be searched incident to the arrest of any occupant of a vehicle.

Carroll v. United States (US Sup. Ct., 267 U.S. 132): No warrant necessary to search a vehicle if there is probable cause it contains contraband or evidence of a crime. (Lesser lesser expectation of privacy in vehicles.)

Search Warrants and Execution

Bayley v. U.S. (Us Sup Ct., no. 11-770, 2/19/13): Unreasonable to detain and pat down persons found one mile from premises where search warrant is being executed. In such cases rationale of Muehler v. Mena (see below) does not apply.

US v. Nguyen (9th. Cir,. no.11-50061, 2/23/12): Probable cause that a crime was committed means "a fair probability" that a crime was committed.

US v. Jones (US Sup Ct., no. 10-1259, 1/23/12): Tracking a vehicle via GPS is a search and requires a warrant.

US v. Song Cha (9th. Cir., no. 09-10147, 3/9/10): Police can seize a residence for a reasonable period while securing a search warrant, but the special status of a home makes twenty-six hours excessive.

US v. Payton (9th. Cir., no. 07-10567, 7/21/09): A drug search warrant that authorized officers to look for ledgers, etc. but did not mention computers cannot be used to justify looking through a computer. Probable cause that evidence may be in an electronic form is required.

Howell v. Polk (9th. Cir., no. 06-16418, 7/16/08): Juries can be asked to determine whether an entry is reasonable considering the "totality of the circumstances". Waiting only 5-8 seconds after knocking before starting to break in a steel-reinforced door (drug search warrant) is not per se unreasonable.

Hudson v. Michigan (US Sup Ct., no. 04-1360, 6/15/06): Violating the "knock and announce rule" relates to how a search warrant is executed, not to the authority for searching, and does not invoke the exclusionary rule/fruit of poisoned tree doctrine, and does not require suppression of evidence.

U.S. v. Grubbs (US Sup Ct., no. 04-1414, 3/21/06): Anticipatory search warrants (to be executed only when a "triggering action" such as delivery of contraband occurs) are Constitutional as long as there is a reasonable probability that evidence (per Fourth Amendment) "will be found" when the warrant is served.

Dawson v. City of Seattle (9th. Cir., no. 03-35858, 1/24/06): Permissible to detain occupants during execution of search warrant. Reasons include a) preventing escape of someone before contraband is found b) officer safety c) to facilitate the search.

People v. Murphy (Calif. Sup. Ct., no. S125572, 11/28/05): Exigent circumstances (to avoid destruction of evidence) can override requirement to knock and announce before entry. In this case police were justified because drug sales were clearly taking place, defendant was on probation for a drug crime and had consented to warrantless search, and police had a noisy confrontation with a suspect to whom they loudly announced the reason for their presence.

United States v. Combs (9th Cir., no. 03-30456, 6/16/05): Raiding a known, operating meth lab police loudly announced their presence and waited before breaching but did not physically knock. Their conduct was deemed appropriate under the Banks "totality of the circumstances" rule (below).

Muehler v. Mena (US Sup. Ct., no. 03-1423, 3/22/05): For reasons of safety it is reasonable to handcuff and detain multiple occupants of a gang-related premises while a search is being conducted.

United States v. Gourde (9th Cir., no. 03-30262, 9/2/04): Membership in a site that contains child pornography does not by itself establish a "fair probability" (probable cause) that contraband would be found on a target's computer. There must also be evidence that pictures were downloaded.

United States v. Bynum (9th. Circuit, no. 03-10231, 3/26/04): "No-knock" execution of search warrant OK under Richards (see below) "dangerousness" exception when an occupant of the premises had previously brandished a gun.

United States v. Banks (02-473, 12/2/03): After "knock and announce", amount of time officers need to wait to break in depends on totality of circumstances. There is no fixed time. In this case it was sufficient to wait 15-20 seconds since the evidence that officers sought - drugs - could have easily been destroyed.

Meredith v. Erath (9th Circuit, no. 02-55021, 9/8/03). Keeping a compliant and non-dangerous resident handcuffed during service of a search warrant for a non-violent crime is unreasonable.

Richards v. Wisconsin (U.S. Supreme Court, 520 US 385, 1997): US Constitution allows no-knock entry when officers reasonably believe that knock and announce is (1) futile, or (2) dangerous, or (3) might "inhibit" an investigation, such as by allowing the destruction of evidence.

Parole and probation searches

U.S. v. King (9th. Cir., no. 11-10182, 3/8/13): Search without warrant or suspicion of a probationer's residence is permissible if it is an explicit condition of probation.

Samson v. Calif. (US Sup. Ct., no. 04-9728, 6/19/06): As long as search is not "arbitrary, capricious, or harassing", peace officers do not need to meet any evidentiary standard to perform a parole search. NOTE: Court distinguished their conclusion from US v. Knights (below) because parole is an alternative means of confinement, whereas probation is not.

U.S. v. Scott (9th. Cir., no. 04-10090, 6/9/06): A pre-trial releasee's written consent to drug testing or search based on "reasonable suspicion" is invalid. Pre-trial releasees are not like probationers or parolees, and cannot be subject to search without probable cause.

U.S. v. Howard (9th. Cir., no. 05-10469, 5/25/06): To search a residence under parole/probation authority, officers must have probable cause to believe a parolee/probationer resides at that location.

Moreno v. Baca (9th. Cir., no. 02-55627, 3/7/05): Officers cannot justify a search after the fact (person illegally searched turned out to be on probation).

Myers v. Superior Court (Calif. Ct. of Appeal, 4th., no. G033785, 11/23/04): Officer must know at the time of the search that subject is on probation and its conditions for search to be reasonable.

U.S. v. Knights (US Sup. Ct., no. 00-1260, 12/10/01): When a defendant has consented to terms of probation that make them liable to a warrantless search, and there is "reasonable suspicion" that they are engaged in criminal activity, the fruits of the search can be used as evidence in any criminal prosecution.

Border Searches

US v. Cotterman (9th. Cir., no. 09-10139, 3/08/13): Indepth forensic examination of a laptop computer seized at the border requires reasonable suspicion, which can be satisfied with a "totality of the circumstances" test.

U.S. v. Villasenor (9th. Cir., no. 08-50541, 6/10/10): Warrantless search of a vehicle away from the border ("extended border search") proper if the vehicle crossed the border and there is reasonable suspicion that it carries contraband or "evidence of criminal activity."

U.S. v. Arnold (9th. Circuit, no. 06-50581, 4/21/08): Contents of a laptop may be searched at a border without reasonable suspicion.

U.S. v. Abbouchi (9th. Cir., no. 05-50962, 7/13/07): UPS hubs which are the last place where Customs can inspect outgoing packages are the "functional equivalent" of a border, making random inspections permissible.

U.S. v. Cortez-Rivera (9th. Cir., no. 04-02171, 7/24/06): Border search of a vehicle does not require reasonable suspicion unless it impairs the car's driveability or safety features.

U.S. v. Shahanaja (9th. Cir., no. 04-50504, 12/8/05): Border search authority extends to the counter of a package delivery agency, even if it is far from the border. Prolonged detention of a package (in this case, nine days) is permissible but requires reasonable suspicion, a standard that was met by the facts of this case.

U.S. v. Cortez-Rocha (9th. Circuit, no. 03-50491, 9/21/04): Border searches that are not "unreasonably destructive" do not require reasonable suspicion (OK to slice open a spare tire.)

U.S. v. Flores-Montano (Sup. Ct., no. 02-1794, 3/30/04): Highly intrusive border searches of vehicles (e.g., disassembling gas tank) do not require that officials meet any standard of suspicion whatsoever.

U.S. v. Romero-Bustamante (9th. Circuit, no. 02-10414, 7/31/2003): Statute granting Border Patrol right to search private lands within 25 miles of the border does not extend to backyards, which are "curtilage" and protected by the Fourth Aemndment.

U.S. v. Okafor, (9th. Circuit, no. 01-50004, 4/4/2002): (a) As long as travelers are not "unduly" delayed, X-Ray examinations do not make a border search "non-routine". (b) Reasonable suspicion of criminal activity [not probable cause] is required for "non-routine" border searches; for example, those that involve stripping or probing a body cavity. (Note: in US v. Flores the Sup. Court said nothing is required for intrusive searches of vehicles).

U.S. v. Montoya de Hernandez, U.S. Supreme Court, 473 U.S. 531 (1985). Routine border searches do not require a warrant or any particular level of suspicion whatsoever.

Identification and Misidentification

Slide show

Documentary video: "Murder on a Sunday Morning": Wikipedia New York Times

New York Times audio/video slideshow on the wrongfully convicted

Excellent eyewitness ID page on Wikipedia

U.S. DOJ report: Eyewitness Evidence - A Guide for Law Enforcement
Edited version Full online version

North Carolina Eyewitness ID law (enacted 7/24/2007, effective 3/1/2008)

New York Times update on exonerations The fascinating case of Timothy Hennis

Mistaken Arrests and Wrongful Convictions

United States v. Hinkson (9th. Cir., no. 05-30303, 5/30/08): A new trial is justified after conviction when newly discovered evidence would more likely than not result in acquittal. (In this case it was proven that a key witness forged documents and lied under oath.)

Stephens v. Herrera (9th. Cir., no. 04-56232, 9/13/06): In petition for writ of habeas corpus on basis of actual innocence, it must be shown that "in light of all the evidence it is more likely than not that no reasonable juror would have convicted" the defendant.

House v. Bell (U.S. Supreme Court, no. 04-8990, 6/12/06): To obtain a writ of habeas corpus on a claim of factual innocence the new evidence/interpretation must promise to be so compelling that, had it been presented at the trial, no reasonable juror could have found guilt beyond a reasonable doubt.

Judge´s decision freeing Efren Cruz

WBOR Boston - DNA, wrongful conviction

U.S. DOJ report: DNA evidence frees 28 falsely convicted persons text version Adobe Acrobat

Eyewitness Memory, Bias, Effects of Interrogation

Carefully read this online paper

Eyewitness ID research lab - findings

Academic website on eyewitness ID

Legal Advocacy Groups

Cardozo School of Law Innocence Project
Truth in Justice
Truth in Justice - Eyewitness ID links

Interrogation, Admissions and Confessions

Slide show

Video assembled by instructor from TV clips: Murder of Stephanie Crowe SanDiego.com Court TV Organic Video Clips

NOTE: "The Interrogation of Michael Crowe", released on DVD, is a fictional account that closely tracks the real story. It's poorly acted but quite factual.

"Creation of False Memories" video: Click here to view it online. More info on Elizabeth Loftus

Police interrogation

Legal discussions Voluntaryness standards Coerced confessions

Defendants incriminating others: Gloria Killian, convicted on the basis of a possibly false statement made by a co-conspirator, released after spending 16 years in prison. L.A. Times, March 14, 2002.

Abusive interviewing and false (induced) memories Website

Child sex-ring prosecutions

Frontline investigation

Wenatchee child abuse prosecutions Wenatchee civil suits against police Wenatchee - ACLU report

McMartin pre-school case

Capturing the Friedmans: "Free Jesse" website Affidavits in support of Jesse's exoneration

Jailhouse informants

Article in law journal (mentions Thomas Thompson case and Leslie White)

Thompson 9th. Circuit decision

Polygraphy

Report - National Academies Press

5th. Amendment - Privilege against self-incrimination Text

U.S. v. Barnes (9th. Cir., no. 11-30107, 4/18/13): Violation of Miranda for FBI agents to interrogate a parolee during his required meeting with parole agents without first advising him of his rights. A delayed warning, provided after the parolee incriminated himself, was a prohibited "two-step interrogation" under Seibert (see below) and came too late.

Howes v. Fields (Sup. Ct., no. 10-680, 2/21/12): Prisoners already live in custody, so questioning one about a crime does not automatically require a Miranda warning. In this example an inmate was given food and water and was told he was free to leave; this and other circumstances suggested that the situation was not unduly coercive.

J.D.B. v. North Carolina (Sup. Ct., no. 09-11121, 6/16/11): Police investigating break-ins questioned a 13-year old at his school without first reading him Miranda. Justices send the case back, ruling that whether a juvenile is "in custody" for purposes of Miranda must take into account the child's age.

Berghuis v. Thompkins (Sup. Ct., no. 08-1470, 6/1/10): Remaining mute after being advised of Miranda does not mean that a suspect has invoked the right to remain silent. "A suspect's Miranda right to counsel must be invoked "unambiguously," not simply through silence.

Doody v. Schriro (9th. Cir., no. 06-17161, 2/25/10): Relentless overnight questioning of a teen violates due process; obfuscating Miranda with an extensive "explanation" also violates Miranda.

Maryland v. Shatzer (US Supreme Court, no. 08-680, 2/24/10): A suspect who is allowed to return to his "accustomed surroundings and daily routine" after invoking his Miranda rights can be approached again after two weeks, and if he waives his rights can be questioned.

U.S. v. Liera (9th. Cir., no. 07-50546, 11/04/09): Holding an arrested person for an unreasonably long time before taking him to a magistrate renders incriminating statements then made inadmissible.

U.S. v. Bassignani (9th. Cir., no. 07-10453, 3/25/09): Suspect in downloading child pornography was questioned in a conference room where he worked while officers served a search warrant. Because officers were cordial, told him he wasn't under arrest and pressure was low Court held no Miranda warning was necessary.

Corley v. U.S. (US Sup. Ct., no. 07-10441, 4/6/09): Federal application only. Federal rules requiring that persons arrested be brought before a magistrate "without unnecessary delay," normally six hours, are not superseded by Miranda. To admit the confession of someone held longer the Government must show that the additional delay was reasonable.

U.S. v. Craighead (9th. Cir., no. 07-10135, 8/21/08): Simply telling someone they are "free to leave" may not be enough to obviate the need for a Miranda warning. In this case many agents "dominated" a home, isolating the suspect in a way that effectively placed him in custody.

U.S. v. Rodriguez (9th. Cir., no. 07-10217, 3/10/08): It is the law enforcement officer's duty to clarify an ambiguous waiver of Miranda rights before proceeding with questioning.

Anderson v. Terhune (9th. Cir., no. 04-17237, 2/15/08): Saying "I plead the Fifth" is an unambiguous invocation of the Fifth Amendment right against self-incrimination. If officers persisting in questioning after this statement is made any responses are inadmissible.

U.S. v. Williams (9th Cir., no. 04-50182, 1/30/06): Under Seibert doctrine (see below) officers who engage in a two-step interrogation: first without Miranda, then if a subject confesses, with Miranda, must take steps to insure that the Miranda warning has not been undercut by the earlier confession.

U.S. v. Norris (9th. Cir., no. 03-10437, 11/10/05): A person who voluntarily accompanied police to station, was not restrained, was told he was not under arrest and free to leave was not in custody for purposes of Miranda.

Arnold v. Runnels (9th. Cir., no. 04-15194, 8/24/05): When a person who waived their Miranda rights imposes a condition, for example, that they do not want the conversation to be recorded, it rescinds the waiver and makes further statements involuntary.

U.S. v. Saechao (9th. Cir., no. 04-30156, 8/12/05): Statements made under threat of having one's probation or parole revoked for remaining silent are inadmissible as evidence.

U.S. v. Rodriguez-Preciado (9th Cir., no. 03-30285, 3/4/05): (a) As long as someone is free to come and go, the fact that police have conducted a search does not render the situation "custodial" for the purposes of Miranda. (b) Miranda warnings do not become "stale" simply because a day passes between interrogations.

People v. Jenkins, Calif. Court of Appeal, no. A099675 (9/30/04): Subject was illegally detained, gave a statement and was released. Three days later he gave another statement. The first statement was suppressed. The second was not because the delay was sufficiently long to remove the inference that it was the product of the illegal detention.

People v. Ramos, Calif. Court of Appeal, no. B166003 (8/27/04): Police cannot promise leniency to get a statement (that is coercion). But it is OK to tell an arrested person what is clearly true - that their cooperation in identifying other persons involved in a crime would benefit them because it would be brought to the attention of the prosecutor.

US v. Patane, US Sup. Ct., no. 02-1183 (6/28/04): Physical evidence found as result of a voluntary statement in violation of Miranda is not a 5th. Amendment violation and can be admitted. "Fruit of the poisoned tree" argument does not apply to Fifth Amendment - only to Fourth.

Missouri v. Seibert, US Sup. Ct., no 02-1371 (6/28/04): Officers who wait to recite Miranda until after someone confesses must demonstrate that the delay does not render the Miranda warning ineffective. Suggested remedy is to inform a suspect that his earlier "confession" is inadmissible, thus restoring his freedom to decide whether to repeat it.

Yarborough v. Alvarado, US Supt. Ct., no. 02-1684 (6/1/2004): Restates Thompson v. Keohane (see below). Whether a situation is "custodial" for the purposes of Miranda is an objective question. Officers do not have to consider "subjective" factors such as a person´s age or their prior experiences with police when deciding whether to give the warning.

People v. Neal, Calif. Supreme Court, no. S106440 (7/14/03): Threats, denial of access to an attorney, and denial of food and water make any subsequent confession inadmissible, even if Miranda is given.

Clark v. Murphy, 9th. Circuit, no. 00-16727 (6/10/03): Requests for a lawyer must be unambiguous - "I think I would like to talk to a lawyer" is not enough (see Davis, below).

Kaupp v. Texas, US Supreme Court, no. 02-5636 (5/5/03): Confession given after an illegal arrest is inadmissible, even with Miranda, unless the State can meet the "high burden" of showing the confession was completely voluntary and not tainted by the arrest.

U.S. v. Kim (9th. Circuit, no. 01-30166, 6/6/02): If a reasonable person would not feel free to leave, they are "in custody" for Miranda purposes.

United States v. Orso, 9th. Circuit, No.99-50328 (09/17/01): Fabricating (making up) evidence to get a suspect to confess does not make the confession involuntary.

US v. Hayden, 9th. Circuit, No. 00-50555 (08/10/01): Circumstances are not "custodial" and a Miranda warning is not required when someone appears voluntarily for police questioning, they are told they can leave at any time, and no undue pressure is applied.

Texas v. Cobb, US Sup. Ct., no. 99-1702 (4/2/2001): Miranda is "offense-specific". Police can question a person who is already represented by an attorney on another crime, as long as the offenses require different proof.

Thompson v. Keohane, US Sup. Ct., 516 U.S. 99 (1995): To determine whether a situation is custodial a Court must (1) establish the circumstances of an interrogation and (2) determine whether under those circumstances a reasonable person would have felt at liberty to leave.

Davis v. U.S., US Sup. Ct., 512 U.S. 452 (1994). "Maybe I should talk to a lawyer" is too ambiguous a comment to force police questioning to cease.

New York v. Quarles, US Sup. Ct., 467 U.S. 649, 656 (1984): Miranda advisement not necessary when there is "an objectively reasonable need to protect the police or the public from any immediate danger associated with [a] weapon."

Frazier v. Cupp, US Sup. Ct., 394 U.S. 731 (1969): Deceptive interrogation (falsely telling an accomplice that the codefendant confessed) does not necessarily make a confession involuntary. Voluntaryness must be judged according to the "totality of the circumstances".

Miranda v. Arizona, US Sup. Ct., 384 U.S. 436 (1966): Statements made during a custodial interrogation cannot be admitted unless a person has been advised of their Constitutional rights and has made an intelligent waiver.

Physical Evidence

SLIDE SHOWS: Due to their size, these slide shows do NOT contain images - it is NOT like what was presented in class!

Michael Peterson case Phys. evid. introduction Trace Evidence Prints and Impressions
Toolmarks and Firearms DNA

National Academy of Science report on forensic science

Documentary video: "The Staircase" Website supporting the State's case

More on the trial of Michael Peterson News-Observer Court TV WRAL website
CBC - Story update CBC - Documentary episode summaries

Books based on this case: Well reviewed - Fanning, Dianne, "Written in Blood". Poorly reviewed - Jones, Aphrodite "A Perfect Husband"

Indexed overview of physical evidence Georgia State Lab

Articles on collecting and preserving evidence

Crime scene search US DOJ publication Text Adobe Acrobat

Fingerprints

Finding and processing latent fingerprints Overview from Georgia State Lab
AFIS - Automated Fingerprint Identification System Overview from Georgia State Lab

"Pointing a Finger at Prints", Los Angeles Times, 2/26/02: Misidentified through fingerprints as the killer of a friend, Riky Jackson spent 2 1/2 years in prison before being freed. Other similar cases throughout the U.S. bring into question the techniques used to match fingerprints, and the skills and training of fingerprint examiners.

Footwear evidence Overview from private forensic site

DNA Evidence Overview from Georgia State Lab Discussion in legal encyclopedia

FBI DNA brochure

Court cases on DNA

Brown v. Farwell (9th. Cir., no. 07-15592, 5/5/08) : Prosecutorial error to suggest that DNA random match probability is same as "source" probability -- that the DNA came from the defendant. Probability of guilt depends on various factors, of which random match probability is only one.

People v. Wilson (Calif. Sup. Ct., no. S130157, 7/6/06): Probability that perpetrator's DNA is from various racial groups is admissible even when the perpetrator's race is unknown.

U.S v. Kincade (9th Cir., no. 02-50380, 8/18/04): Forced collection of DNA evidence from convicted Federal offenders is reasonable.

U.S. DOJ Report: What Every Law Enforcement Officer Should Know About DNA Evidence text version indexed web browser version

Reading on reserve: "DNA on Trial"

Firearm identification Forensic firearms site

Questioned documents Overview from Georgia State Lab

Handwriting

Evidence Code section 1417: Genuineness of handwriting can be determined by a jury - no expert required.

People v. Rodriguez (C.A. 2nd, no. B176354, 10/18/05): Under sec. 1417 a jury can compare signature on driver license to questioned writings to decide whether the same person wrote both (no expert testimony required).

Expert and opinion testimony

Opinion, not by an expert: Evid. code sec. 800
Expert testimony: Evid. code secs. 720-723 Evid. code secs. 801-805

Admissibility of expert testimony Online article from private site

Briceno v. Scribner (9th. Cir., no. 07-55665, 2/23/09): Expert witness testifying hypothetically about a factual situation identical to the one at trial said that the alleged crimes were committed in furtherance of a gang. The Court allowed the testimony as there is "no clearly established constitutional right to be free of an expert opinion on an ultimate issue." (Case sent back on other grounds.)

U.S. v. Prime (9th Cir., no. 02-30375, 4/16/04): Handwriting evidence (comparing known to questioned handwriting) meets the standards of Daubert.

People v. Yum (Calif 4th. Ct. Appeal, no. E031437 (8/22/2003): Results of SPECT brain scan not admissible because the technique has not "achieved general scientific acceptance" for diagnosing psychiatric disorders.

U.S. v. Alvarez-Farfan (9th. Circuit, No. 02-10324, 8/7/03): Except for extreme or unusual situations, expert testimony is not necessary and jurors can determine for themselves if the same person wrote two documents.

U.S. v. Pineda-Torres (9th. Circuit, No. 01-50133, 4/23/02): Expert testimony about the structure of drug trafficking organizations is unduly prejudicial when there is no proof that a defendant belonged to such an organization.

Domingo v. T.K., M.D (9th. Circuit, No. 00-15064, 1/03/02): District Courts are the "gatekeeper" over expert testimony. They can exclude it if it is not based on "objective, verifiable evidence and scientific methodology of the kind traditionally used by experts in the field".

Daubert v. Merrell Dow (US Sup. Ct., 509 U.S. 579, 1993). Scientific testimony or evidence must be relevant and reliable. Reliability depends on whether a method has been tested, its error rate, whether it has been peer reviewed, whether there are standards for its use, and its general acceptance in scientific community.

Surveillance and undercover work

Visual and Electronic Surveillance

Calif. Law and Court Decisions

Electronic interceptions Penal Code secs. 629.50-629.98

People v. Davis (Calif. Sup. Ct., no. S012945, 7/21/05): No reasonable expectation of privacy in jail. Authorities can tape record prisoner conversations without a court order.

California Attorney General Decision 03406, 12/18/03: To meet the requirements of the California Constitution State officers must have a court order, based on probable cause, to install pen registers (record numbers called) or trap-and-trace devices (record numbers that originated incoming calls.) Federal court orders are insufficient because they can be obtained by meeting the lesser standard of "relevance" to an investigation.

Federal Law and Court Decisions

U.S. v. Pineda-Moreno (9th. Cir., no. 08-30385, 1/11/10): No warrant required to enter driveway, within curtilage but in plain view, and attach a magnetic tracking device to a car's exterior, as to which there is no expectation of privacy.

U.S. v. Forrester (9th. Cir., no. 06-50169, 7/6/2007): No reasonable expectation of privacy in the identity of IP addresses someone visits with their computer. Same rule as for pen registers -- the phone company knows the numbers that someone calls, just like ISP's know the IP's a computer user visits.

Minnesota v. Carter, US Sup. Ct., no. 97-1147 (1998): Visitors to a private residence do not have a reasonable expectation of privacy. Summary

Katz v. United States, US Sup. Ct., 389 U.S. 347 (1967): Reasonable expectation of privacy in telephone calls. Interceptions (no-party consent) of electronic communications are protected by the Fourth Amendment and require a search warrant. Reversed Olmstead (below.)

Olmstead v. United States, US Sup. Ct., 277 US 438 (1928): Electronic conversations are not protected by the Constitution (reversed by Katz, above.)

Undercover work

U.S. v. Mayer (9th. Cir., no. 06-50481, 6/6/07): Undercover is not a search under the 4th. Amendment. No "reasonable suspicion" is needed, as there is no legitimate expectation that information voluntarily given will not be disclosed.

People v. Watson, Calif. Supreme Court, no. S078207 (01/20/00): Not entrapment when police merely provide the opportunity to commit a crime.

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