4th, 5th, and 6th amendment

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, and provides that no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons to be seized. In order to establish probable cause, the officer must establish that there is a fair probability that the area to be searched contains evidence or the person to be arrested has committed a crime; a mere possibility is insufficient. A search without a warrant is presumed unreasonable absent the presence of a

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recognized exception. U. S. v. Johnson. The Supreme Court has held that this is permissible, but only under certain circumstances. The first issue is whether Detective Davis (DD) committed a search when she went down to the basement. A search occurred if Bishop Short had a subjective expectation of privacy which society would deem to be reasonable (Katz v. U. S. ) The defense would likely argue that the Bishop (B) had a subjective expectation of privacy in the basement, and that there was an objective expectation of privacy also because only the area where services took place were open to the public.

The government would counter by arguing that DD simply walked downstairs during the services, which were open to the public, so anyone had access to this area. Additionally, there was a children’s playroom, which could be used to take loud or crying babies during the services, and that was therefore accessible to the public. If other members of society could gain access and view the basement, then there was not an objective expectation of privacy. 1 Accordingly, DD did not commit a search simply by going into the basement. Whether a search occurred becomes less clear once DD entered B’s office. The

government would argue that the door was open, so DD did not commit a search by merely entering B’s office. Whether this was a search was less significant, however, than the opening of the desk drawer. Even if DD had legal access to the office, she certainly “searched” when she opened the drawer. According to the plain view exception of the warrant requirement, a police officer can seize anything in plain view once legally in a space, but the officer needs probable cause to believe that what is immediately apparent is contraband or evidence of a crime, and it cannot require further investigation. Arizona v.

Hicks. The Supreme Court has even held that lifting a turntable to view a serial number is an illegal search that extends beyond the limits of the plain view doctrine. Arizona v. Hicks. Certainly, opening the desk drawer is more of an invasion of privacy than lifting a turntable. Further, the defense would argue that B had both a subjective and objective (an expectation that society is prepared to recognize as reasonable) expectation of privacy in the contents of the drawer. Katz. B would argue he had a subjective expectation of privacy, mostly because the drawer was closed, but also that society would

recognize this as a reasonable expectation because the drawer was closed. If the government had not brought this up earlier, it would certainly bring up the argument by now that it had probable cause to believe there was evidence of the crime (possession of cocaine with the intent to distribute) based on the informant’s tip. Whether an informant’s tip is sufficient for establishing probable cause depends on the Gates totality of the circumstances test, where there should be particularized facts that show given all the circumstances, there is a fair probability that contraband or evidence of a crime will be found.

To simply say that the drugs are “stored somewhere in the church” is not necessarily enough to 2 establish probable cause. Even if it was enough to establish probable cause, DD certainly had time to get a warrant before searching the church. Accordingly, by the time DD opened the drawer, a court would likely find that DD committed a “search”, and anything she found therein would be suppressed. The defense would take this one step further and argue that certainly opening the bible was a search, even if opening the drawer wasn’t. DD would have needed to get a warrant to open and search the bible.

Accordingly, a court would likely find that DD illegally searched B’s drawer when she opened the drawer and opened the bible, and the cocaine would likely be suppressed as evidence to be used against B. A court would likely similarly suppress the cocaine, spreadsheets, and cash found in the room next to the office. The defense would argue that B had both a subjective and reasonable, objective expectation of privacy in this room (Katz) and that DD had no warrant that allowed her to legally enter this area. The door was closed, and once she opened it, she must

have realized that this seemed to be where the bishop lived – there was a bed, the bishop’s clothes, pictures of his family, and a bathroom. The defense would argue that this was actually his home, and should have been treated with the heightened Fourth Amendment protections afforded to homes. Once she realized it was the Bishop’s home, she should have gotten a The government would counter this argument by contending that DD had probable cause after having found the cocaine in the bible, and that this was not a home because it was in a church and adjoining his office.

Based on the facts I stated in the previous paragraph, a court would likely find this to be a home. But the government could argue that DD had probable cause and the search was justified based on the exigent circumstances exception to the warrant 3 requirement. The government would try to justify the search by claiming that there was probable cause to believe that there is an imminent risk of destruction of evidence, thereby justifying a warrantless search of this room. See United States v. MacDonald. Because this crime involved drugs, if B discovered his drugs in the bible were missing, he might go and destroy the evidence

in his room with the cocaine, stacks of cash, and spreadsheets of young men’s names in the time it would take to get a warrant. A clear opportunity to obtain a warrant, however, would preclude the later invocation of the exigent circumstances exception, which is what the defense would argue. United States v. Miles. The defense would say that the government had enough time to get a warrant to search the room and there was a high likelihood that B wouldn’t even know about the cocaine missing from the Bible. The government would counter by arguing that officers have

a right to continue their investigation to strengthen their showing of probable cause or just collect more evidence to strengthen the chance of a conviction. See United States v. Miles. The defense would likely argue that the government could have simply seized the premises in the absence of exigent circumstances to search a house or other premises while the officers obtain a search warrant. See Segura; McArthur. It is permissible to seize premises for a period of time while diligent attempts are being made to obtain a warrant. Segura. The government failed to do that here, and therefore, the defense would contend that the search was illegal.

Even if a court did find that DD had the legal right to be in the room based on the exigency exception to the warrant requirement, she certainly did not have the right to search the suitcase she found in the closet. She could have possibly seized the suitcase under the plain view exception (explained in 1(i)), but she could not have opened it. Accordingly, a court would likely find that the search of the suitcase was illegal, and the contents of it should be suppressed and not used as evidence against B. 4 The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.

The due process clause of the Fifth and Fourteenth Amendments, as well as the Sixth Amendment right to counsel provide certain protections to individuals once adversary proceedings against the suspect have begun. The Supreme Court also has applied the Fifth Amendment protection against self-incrimination to suspects under police custody as well. Under Miranda, a suspect must be informed of her 5th Amendment rights before a custodial interrogation may lawfully take place. The rights that must be enunciated under Miranda include the right to remain silent, that anything the suspect says may be used against her in a court of law,

the right to an attorney, and that an attorney will be provided if the suspect so chooses. Miranda; Dickerson. These warnings need not be administered word for word, but they must be administered before a suspect is interrogated. Duckworth v. Eagen. Under the Due Process Clause, the suspect must have given his statements voluntarily, and his right need not be invoked. Brown v. Mississippi. For Miranda protections to apply, a custodial interrogation must take place. The suspect must be “in custody,” as determined by the Brown factors, and the police must “interrogate” the suspect according to the standards set forth in Rhode Island v.

Innis. Whether B was “in custody” in the back of the police car on the way to the police station depends on whether the suspect felt free to leave. The defense would argue that B was in custody. Applying the Brown factors, the suspect was handcuffed in the back seat by himself, isolated from the two police officers in the front seat. He could not move because of being handcuffed. He was not informed that the questioning was voluntary and that he was free to leave. The officers initiated the contact. The atmosphere was police-dominated because he was isolated in the back by 5 himself. In fact, he had been placed “under arrest” earlier.

Accordingly, a court would definitely find that B was in custody at this point. While the defense would argue that there was an “interrogation,” a court would likely find that this was not an interrogation. An interrogation is express questioning or the functional equivalent (any words or actions on the part of the police that are reasonably likely to elicit an incriminating response from the suspect). Rhode Island v. Innis. The circumstances here resemble those of Innis. In Innis, the suspect was in the backseat and one officer said to the other that he hoped the handicapped children from the school nearby didn’t find the gun and hurt

themselves, thus inciting incriminating statements from the suspect. The Court found that this was not an “interrogation” because the officers were merely talking to each other. The defense would argue that the facts in the present case are distinct from those in Innis. Here, the officers were not merely referencing people the suspect did not know, but rather B’s wife, and were threatening to arrest her. The government would counter that as in Innis, a court would likely find that the officers were merely talking to each other and not trying to elicit an incriminating response out of B.

The Government might also cite a lower court case where officers made a similar statement about having to arrest the suspect’s daughter unless he confessed. That court held this was not an interrogation. US v. Calisto (3d Cir. ). Accordingly, B’s statements made in the police car probably would not be suppressed. The defense might also argue that the statement was involuntary and thus a violation of B’s due process rights but there is no evidence to suggest that the officers used coercive tactics in the car so this argument will likely fail here. Everything mentioned about the Fifth Amendment and Due Process discussed in 1(iii)

6 applies here as well. Suspects must be read their Miranda rights unless one of the recognized exceptions, such as the emergency exception, applies. Once a suspect is warned, he or she may waive his/her rights, but this waiver must be knowing, intelligent, and voluntary. Once a suspect invokes his right to silence, this right must be “scrupulously honored” and the officer may not speak to the suspect without a cooling off period. Michigan v. Mosely. This right must be invoked unequivocally. U. S. v. Davis. On the other hand, if the suspect invokes his or her right

to counsel, the officers may not speak with the suspect unless their lawyer is present or the suspect initiates contact. Edwards v. Arizona; Oregon v. Bradshaw. B was definitely in custody since he was under arrest at this point and he was clearly being interrogated. Here, unlike with the statements in the police car, the suspect was read his Miranda rights, and the government would certainly emphasize this point and argue that the suspect understood his rights and waived them by eventually speaking. While the defense would argue that B invoked his right to silence by remaining silent for three hours and that a right to

silence must be “scrupulously honored” (Michigan v. Mosley), the government would successfully counter this argument by contending that invoking a right to silence needs to be clear and unambiguous (See Berghuis v. Thompkins). In Berghuis v. Thompkins, the suspect was silent for 2 hours and 45 minutes before the police used a similar religious appeal against the suspect to elicit an incriminating response. In Thompkins the Court held that the suspect waived his right to remain silent when he spoke and that the waiver was voluntary because no threats of violence or coercion were used. Similarly, in this case, the government would argue that no

threats of violence or coercion were used in eliciting B’s incriminating response, even though the suspect was silent for 3 hours; therefore, the statements should be admissible. A court would likely agree with the government in this case, citing Berghuis v. Thompkins. 7 The defense’s only remaining argument is that officers violated B’s due process rights by arguing that this was a coercive environment and therefore B’s statement was involuntary. The defense would emphasize the small room, the placement of B on the other side of the desk from the two officers, the isolation of B, and the use of false promises of the Lord forgiving him.

The government would argue that courts have consistently upheld statements made under similar circumstances as voluntary in the absence of any other coercive behavior by the police officers. Therefore, the court would find that the statement was voluntary. The motion to suppress would likely be denied. Question 2: The Fifth Amendment protects a suspect from self-incrimination. The nature of the rights protected and given pursuant to Miranda are outlined in answer 1(iii) and 1(iv). This case involves the issue of whether Justin Barber (JB) was in custody in the kitchen, thereby requiring

the police officers to provide Miranda warnings before interrogating him. If a court found that this was an interrogation and JB was in custody, then JB’s statement in Officer Roberts’ (OB) kitchen would be suppressed, and the government would not be able to use it in its case-in-chief. If JB’s statement was found to be involuntary under the Brown due process test, then JB’s statement could not be used for any reason, not even for impeachment purposes. JB was neither under arrest nor in custody while in the officer’s car or when he first entered his house. It was when they all entered the kitchen that the issues of whether JB was

under arrest or in custody became less clear. The defense would, applying the Brown factors, argue that JB was in custody after he asked to go home and OB said, “Not so fast. ” A person in this situation would not feel free to leave, and would feel deprived of his freedom in a significant 8 way. The defense would argue that there was a coercive environment set up in the kitchen, which was a small room, and the officers sat on either side of him, effectively preventing JB from leaving. The government might try to argue that age is not a relevant factor in determining whether someone is in custody. Yarborough v.

Alvarado. However, the Supreme Court recently held, in J. D. B. v. North Carolina, that a child’s age is a relevant factor in considering whether a child is in custody for purposes of Miranda, as long as (1) the child’s age was known to the police officer or (2) would have been objectively apparent to a reasonable police officer. Because the officer knows JB doesn’t have his license, it is clear that OB knows JB is a minor. Further, because of JB’s pop star fame, an objective person would likely know that JB is a minor. Accordingly, his young age is another factor in determining whether an objective person would

feel free to leave in that situation, weighing in favor of not feeling free to leave. The atmosphere of questioning was also police-dominated, and the police initiated the questioning. Based on these factors, a court would find that JB is in custody. The government could try to counter by arguing that this was merely a friendly chat in a kitchen and that the officers did not handcuff him or otherwise restrict his movement. The defense would contend that because of the coercive nature of the questioning, however, based on the facts and arguments in the previous paragraph, as well as the forced movement to an

effective “custodial area” (OB’s kitchen) this was transformed into an arrest. Royer. At a minimum, the court would likely find that JB was in custody. This was also clearly an interrogation because JB was being subject to “express questioning. ” Because a court would find that JB was in custody and being interrogated during this period, the officers should have provided Miranda warnings to JB. Because they did not, JB’s statement in the kitchen cannot be used against him in trial and would be suppressed. 9 The defense also has a valid due process involuntariness argument against the government.

The defense could argue that the officers flat out lied to JB with a false promise by saying that no charges would be filed if he just returned the tape. In addition, they would make the same arguments above about the coercive environment of the kitchen to support their argument that the statement was involuntary. Although the defense is unlikely to prevail on the involuntariness argument, the statement would likely be suppressed on Miranda grounds. The Fourth Amendment protections provided to a suspect are outlined in answer 1(i). The Supreme Court has held that under certain circumstances, a search is permitted without a

warrant, provided there is probable cause. As a preliminary matter, the defense could argue that the failure to give Miranda warnings would lead to the suppression of the physical evidence found in JB’s car because it was the fruit of a Miranda defective confession. However, the government would contend, and rightly so, that Miranda only provides protection against testimonial evidence, not physical evidence such as the gun the suspect showed a police officer after defective Miranda warnings in United States v. Patane. According to Patane, as long as the statements are voluntary, the physical fruits

of an unwarned statement are admissible. The defense would contend that the police could have simply gotten a warrant, as they had time to do so, thus making any search of the BMW unreasonable. The government would argue that he did not need a warrant because the search fell under the automobile exception: the cop had probable cause to believe that the automobile contained evidence of criminal activity and therefore did not need to get a warrant. Carroll v. United States. The government had probable cause based on JB’s confession and the informant’s statements. The defense would

10 argue that the cop did not have a right to open the wallet in JB’s car. The government would counter by arguing that the automobile exception allows officers to search mobile containers in the automobile where they have probable cause to believe that evidence related to the crime is contained therein. See California v. Acevedo. The government would argue that a tape could certainly fit inside of a wallet. The facts don’t indicate one way or another whether the tape could fit inside the wallet, but if it could, a court would likely uphold this search under California v. Acevedo.

If the officer knew the size of the tape, and it clearly could not have fit in the wallet, then he had no right to look in the wallet, and the cocaine would be suppressed. The officer had not yet found the tape, so he continued searching until he found it. Because a court would likely find that the officer had a legal right to search the vehicle without a warrant under the automobile exception, a court would likely find that tape would not be suppressed and could be used against JB in trial. Whether the cocaine would be suppressed would depend upon the size of the tape and whether it could have fit inside the wallet.